La relación como categoría esencial de la obligación y de la responsabilidad contractual
Obligation is a complex structure which, as culpa in contrahendo makes clear, can stay without the duty of performance. This has been accepted by the Italian Corte di Cassazione, being critized by some author. The argument against the idea of obligation without a primary duty of performance speciall...
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| Format: | Article |
| Language: | Spanish |
| Published: |
Universidad Externado de Colombia
2012
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| Subjects: | |
| Online Access: | http://dialnet.unirioja.es/servlet/oaiart?codigo=4124073 |
| Source: | Revista de Derecho Privado, ISSN 0123-4366, Nº. 23 (Julio-Diciembre), 2012, pags. 47-64 |
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| Summary: |
Obligation is a complex structure which, as culpa in contrahendo makes clear,
can stay without the duty of performance. This has been accepted by the Italian Corte di
Cassazione, being critized by some author. The argument against the idea of obligation
without a primary duty of performance specially regards liability of medical doctors
working in a hospital. They do not have any duty of performance as to the patients,
since they are obliged to the hospital. It is hard, though, to place them with regard to
patients at the general level of the alterum non laedere principle presiding extracontractual
liability. Their professional position creates a reliance which reflects on liability.
Consequently this one has contractual nature, precisely demonstrating that there can
be obligation without a duty of performance. The implication is that relationship not
performance constitutes the essence of obligation. |
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