Конференция «Ломоносов-2022»
Секция «Английский язык и право»
Solidary and Concurrent Delictual Liability in the French and Argentinian Law:
Which of the Legislators Found a Better Criterion of Their Delineation?
Научный руководитель – Иванов Антон Александрович
Борха Сергей
Студент (магистр)
Национальный исследовательский университет «Высшая школа экономики», Факультет
права, Москва, Россия
E-mail: sergey@borha.ru
1. Unlike many other civil law jurisdictions, legal orders of France and Argentina establish
two separate legal regimes for cases where several debtors are fully liable to the same creditor
for the same damage: solidary obligations and obligations in solidum in France and solidary
and concurrent obligations in Argentina. Since these regimes differ markedly from each other
[6, p. 840-852, 858-863, 869-873; 7, p. 520-524], the legislator and law enforcer need to be able
to clearly distinguish between the hypotheses of their application. However, cases of solidary
and concurrent liability in France and Argentina do not coincide, and what is considered
as une obligation solidaire in France can be qualified by Argentinian lawyers as obligaciones
concurrentes. At the same time, justice requires that these criteria be ubiquitously uniform.
Thus, it is worthy of an independent comparative investigation of the criteria formed both in
French and Argentian law in order to determine the one whose application leads to a greater
number of fair decisions.
2.1. In France, a rather unimaginative criterion has developed to determine the nature of
the common obligation of several delinquents: «the obligation of each to the whole which weighs
on the tortious co-debtors is merely an obligation in solidum, except in the exceptional cases
where a text adds to it the characteristics of solidarity» [5, p. 169-170].
2.2. In this manner, the French law expressly recognizes inter alia the following cases as
solidary obligations:
∙ common liability for restitution and damages of the co-authors and accomplices convicted
of the same crime, dilit or 5th class contravention (arts. 375-2, 480-1 and 543 of the Code of
Penal Procedure) or convicted of several connected crimes and dilits (broad interpretation of
arts. 375-2 and 480-1 of the Code of Penal Procedure);
∙ common liability of parents for damages caused by their minor children living with them
(par. 4 of art. 1242 of the Civil Code) [3, ns. 47, 51, 76].
2.3. In the following cases, French law does not establish solidarity among debtors, which is
why these obligations are regarded as in solidum:
∙ common liability of the co-authors of the same damage;
∙ vicarious liability, e.g., liability for damage caused by individuals in one’s custody;
∙ common liability of civilly liable persons and ones who were convicted of the criminal offense
for the same damage [3, ns. 53, 172, 180-181].
3.1. In Argentina, the general principle that delimits the scope of application of solidary and
concurrent obligations in the field of civil liability is established in art. 1751 of the Civil and
Commercial Code, according to which: the rules of solidary obligations are applied if several
persons participate in the production of the damage that has a single cause (as a generating
cause [1, p. 3-4]), and the rules of concurrent obligations are applied if the plurality derives
from different causes.
3.2. Following this criterion, the Civil and Commercial Code recognizes the solidary liability
of several co-authors or accomplices for harm caused by joint actions (art. 1751), the solidary
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Конференция «Ломоносов-2022»
liability for harm caused by an unknown person from a known group of persons (art. 17601761), and the solidary liability of members of a group carrying out activities dangerous to
third parties for harm caused in the course of such activities by one or more of its members
(art. 1762) [2].
3.3. At the same time, the scope of application of the rules on concurrent obligations inter
alia includes cases of liability of:
∙ controlling persons and persons under their control for harm caused by the latter (art. 1753
of the Civil and Commercial Code);
∙ parents (delegates, guardians, curators, or institutions) and their children for harm caused
by the latter (art. 1754, 1756 of the Civil and Commercial Code);
∙ the owner and the person exercising directly or through third parties the use, management,
and control of the thing for the damage caused by the latter (art. 1758 of the Civil and
Commercial Code) [4].
3.4. Meanwhile, one should not forget that if among several debtors liable to the creditor for
various causes, there are two or more for which it coincides, there is a need for the cumulative
application of the rules on solidary and concurrent obligations (e.g., in the case of the vicarious
liability of parents, the latter are considered as solidary debtors (between themselves and the
creditor), whereas their child and either parent - as concurrent ones).
4. Taking into account the above considerations, the French criterion for delineating the
domains of solidary and concurrent obligations already at first glance appears to be inconsistent
since its application causes some identical situations to be treated unjustifiably differently (cf.
theses 2.2 and 2.3). The Argentinian approach, on the contrary, seems logical and justified,
but only as long as we do not encounter cases of collective liability established in arts. 17601762 of the Civil and Commercial Code. One could say that these cases have nothing to do
with solidarity since their hypotheses should give rise to ordinary obligations with a single
debtor. However, a closer look reveals that these doubts are groundless because the Argentinian
legislator therewith established a special mechanism of the collective guarantee that makes it
easier for victims to receive full satisfaction without knowing or proving the identity of the true
tortfeasor, which might be almost impossible in such cases.
Источники и литература
1) Conclusiones de la Comisión № 2: Obligaciones concurrentes // XXVII Jornadas
Nacionales de Derecho Civil. Santa Fe: Facultad de Ciencias Jurı́dicas y Sociales de la
Universidad Nacional del Litoral, 2019.
2) Jalil J.E. Daños causados por los grupos en el nuevo Código Civil // elDial.com. Biblioteca
Jurı́dica Online.
3) Le Tourneau Ph., Julien J. Solidarité // Encyclopédie juridique Dalloz. Répertoire de
droit civil. 2018.
4) Márquez J.F. Las obligaciones concurrentes. La recepción en el Código Civil y Comercial
y su aplicación en la responsabilidad civil // Revista de Responsabilidad Civil y Seguros.
2015. № 4.
5) Mazeaud L. Obligation in solidum et solidarité entre codébiteurs délictuels // Revue
critique de législation et de jurisprudence. 1930.
6) Obligaciones / A.E. Marino, M.C. Maglio, D. Burgos, N.O. Silvestre; dir. por N.O.
Silvestre. 2𝑎 ed. Buenos Aires: La Ley, 2016.
7) Porchy-Simon S. Droit civil 2𝑒 année: Les obligations. 9𝑒 éd. Paris: Dalloz, 2016.
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