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22-04-2013

Oblications Resulting From The Causing Of Damage (Torts)

Authors

  • Myrteza Myftari, Attorney at Law, LL.M
    Administrator of Myftari & Associates Law Office
    Oriola Uka, Attorney at Law, LL.M
    Member of Myftari & Associates Law Office

Which is the legal base of “Torts”?

The general provisions (base) related to obligations resulting from the causing of damage and therefore those related with the right to ask for damage compensation, are provided in the Civil Code of Albanian Republic, Part IV, Title IV, Chapter I-III of the Code (Articles 608-647). In specific cases, for example when the damage resulted from transport accident and has certain consequences like personal injury or death, then compensation for the damage caused is awarded according to the Rules of the Financial Supervisory Authority “For treatment of damages covered by compulsory insurance contracts in the transport sector” issued by law no. 10076 dated 12.02.2009“On compulsory insurance in the transport sector.

Which are the necessary conditions to bear civil liability for causing damage?

For the civil liability, the basic rule is: “Whoever causes, with intention, harm to another person is obliged to compensate the damage done, whether the damage is the result of failure in completing obligations arising from contractual relations or the result of business tort. To bear “Civil Liability”, the following conditions have to apply:

  • The existence of damage (damage has occurred and its not hypothetical)
  • This damage is caused by damager attitude (actions/omissions)
  • The behavior that has caused the damage, has illegal character
  • There is connection between the fault and the damage caused

According to the “Civil liability” legal notion, the person who caused the damage, is obliged to recover harmed interests and rights (individual restitution, generic restitution, fix the damaged object ect.) and when this isn’t possible, he is obliged to compensate the caused damage. Obligations as result of causing damage, arise either as result of material goods violation as well as result of personal non-property goods violation (rights and freedoms)

What is included in “Tort”

The damage that the damaging party is obliged to compensate to the injured party is provided in article 640 of Albanian Civil Code (ACC) and includes:

  • Effective Damage (suffered loss - article 640 of ACC)
  • Missing profit
  • Expenditures done in order to avoid damage
  • Expenditures done in order to reduce damage
  • Expenditures done in order to determine the responsibility
  • Expenditures done in order to determine the extent of damage and
  • Expenditures done in order to reach the compensation benefit for the damage through extra-judicially dispute resolution.

Which are the ways of compensating the “Tort”?

To determine which is the way of compensation for the caused damage, should be done the distinction between property and non-property damage. Property Damage Property damage is damage in the subjective right of property. Albanian legislation and judicial practice regarding the fulfillment of the “torts” (as well as contractual obligations), has always given priority to the fulfillment of the obligation in nature. Remuneration is applied only in cases where the fulfillment of the obligation in nature hasn’t been possible. Civil Code of Albanian Republic, in its Article 476, lets in the will of the creditor (the injured) to choose the way of fulfilling that obligation seeking fulfillment in nature or indemnification of obligation in cash.

Non-property damage Non-property damage is the violation of personal rights or interests of the injured party, which is not expressed in his wealth. The Unifying Decision of the Joint Colleges of the Supreme Court, in the decision no. 12 date 14.09.2007 states: “Anyone who undergoes violations in the sphere of health and his personality from unlawful actions or omissions of a third fault has the right to demand for compensation of moral damage suffered. This right belongs to the injured party individually and it also belongs to each of the family members, relatives of the person who has lost his live or been injured in his health from the unlawful fact , if it is verified their family connection, sensory and cohabitation. The moral damage suffered by the relatives is considered as an immediate and direct consequence of the same illegal fact”. Non property damage, generally, is compensated with money. Non-property damage is repaired (in some cases) even with the publication of court decision, refuting or correction in any other way, in public communication means (Article 617 of the Civil Code) In terms of compensation for “Loss Profit” as an integral part of the damage, which is an income that is expected in normal conditions and would have been accomplished, if it was not hampered by harmful behavior, this awarded in cash or in nature (if its possible).

What is the content of “Compensation” in case of death?

In case that the damage caused the loss of life (the death of a person), the family members of the victim, have the right to claim for property and non-property compensation. Additionally the person who lived with the victim without being married to him/er (coexist) and in some cases even other persons, like close relatives or family in law with the victim - (Unified decision 12/2007), have the legal interest too claim compensation in case of death. In case of a person’s death, the damage that should be compensated from the respondent consists of:

  • Expenses for food/ livelihoods of the following family members of the victim (i) Minor children; (ii)Husband/wife; (iii)Disable parents in charge of the victim;(iv) Persons who lived in the victim’s family and who enjoyed the “food right” from him.
  • Victim’s funeral expenses. The compensation that the offender is obliged to pay shouldn’t be less than the value that the victim’s family is supposed to spend for the burial, in accordance with his economic conditions.
  • When the victim is minor the responsible of the damage has to recompense dhe damage in the form of loss profit suffered by the victim’s family.

What is the content of “Compensation” in case of personal injury?

When the damage has caused a personal injury, the injured person and in some circumstances, his family members, have the right to claim for compensation. Even the person that coexisted with the injured party without been married has this right. The damages that should be compensated to the injured party from the respondent are:

  • Health damage as a damage itself
  • Loss/reduction of working capacity, as an economic damage
  • Expenditures done or that should be done for the treatment of the injured party
  • Personality violation and
  • Lifestyle changing

The amount of compensation awarded for (1) health damage as a damage itself and (2) for the reduction of the injured working capacity as an economic damage, can be amended afterwards even after the issue of the relevant court decision, in case of objective changes of the circumstances (Article 642 of the Civil Code) The circumstances that legitimize the performance of such action are defined exhaustively by article 642 of Civil Code and they are:

  • Improvement/ aggravation of the claimant’s health after the issue of the court decision regarding the amount of compensation
  • The increase or decrease of claimant’s working capabilities, in comparison to the time when the compensation was determined
  • Changes of the salary of the damaged person

Which are the legal remedy and ways to obtain compensation for the damage suffered?

The legal remedy, through which a person claims to recover the infringed right or asks for damage compensation, is the Claim. In general, the claim for compensation could be made against everyone whose acts/ omissions have caused damages, personal injury or the death of a third party. The claim in such case could be raised before Civil Court (In the Judicial District Court where the respondent has his residence, or in the Judicial District Court where the damage was caused, or in the Judicial District Court where lives the plaintiff – Article 48 of the Albanian Civil Procedure Code) In cases when we are dealing with acts/omissions that are indentified as criminal acts by the Albanian Penal Code or other criminal laws, and as result of this act/omission health damage or death of third party has been caused. Penal Code (article 625) provides that “ A person who suffers a non-property damage has the right to be compensated when he suffered a damage in his health, physic or psychic integrity”. The injured party or the heirs of the deceased person, have the right to intervene in the criminal process through the “Civil claim in the criminal proceeding”. This right is provided in article 61 of the Civil Procedure Code (CPC) that states “ He who has suffered a material damage from a criminal act, or his heirs, can raise a civil claim during the criminal process against the defendant or the respondent, to seek return of the property and compensation. Article 62 of the CPC provides that the plaintiff may be legislated in the criminal process until it hasn’t started judicial review.

Which are the legal deadlines within which you should exert the right to claim for damage compensation?

Albanian Civil Code, in its article 120, has established a provision of a general nature which provides that “The prescription of the claim for damage compensation (extra damage) begins from the date when the aggrieved party knew or should have known about the damage suffered and the person who has caused it. While, article 115, paragraph “f” of the Code provides an objective limitation for the prescription, which is 3 years.

Which are the costs of setting up a claim for damage compensation?

Costs for setting up a claim for damage compensation, are as follows:

Claims arising from contractual relationship as well as causing damage, with a value up to 100.000 leke Tax Measure
12.000 leke
Claims arising from contractual relationship as well as causing damage, with a value over 100.000 leke Tax Measur
3% of the value

 

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