What is asset liability?

Patrimonial liability is an obligation imposed on a private individual or public administration that causes damage, repairing the same by its own means, provided that the injured party has the legal duty to bear the same in the event that the damage is not due to force majeure or by the injured party himself.

Potential cases of asset liability

It is an obligation to respond to damages that have been caused to others outside a commitment. It may fall on a private individual and, if this were the case, it would be governed by the rules of civil law, or in the case of a public administration, it would be governed by the rules of administrative law on patrimonial liability, where it is stated that the person responsible for a damage must respond to the injured party as long as the latter does not have the legal obligation to bear them and, as mentioned above, that the fault is not due to the injured party himself.

The reparation of the damage consists of compensating the damages caused, which may be in the form of consequential damages, loss of profits and moral damages.

Where is asset liability regulated?

This is provided for in articles 1902 and 1903 of the Civil Code in the case of private individuals, however, in the case of Public Administrations, is reflected in Article 106 of the Constitution in addition to Articles:

• from 32 to 37 of Law 40/2015, October 1, of the Public Sector Legal Regime.
• Title IV of Law 39/2015, of October 1, of the Common Administrative Procedure among Public Administrations (LPAC), having specifications in Articles 65, 67, 81, 91 and 92.

Asset liability in the Administration

The characteristics of asset liability in the Administration

It must have the following characteristics:

• It is a comprehensive liability, as it includes moral and property damages.
• It is a direct liability, since the individual can claim directly against the Administration as an entity instead of the directly liable party, just as the Administration can oppose the latter with the action of return.
• It is a general liability, it operates with respect to any sector of the public administration as well as for actions, omissions or impassivity.
• It is a strict liability, since the Administration is liable for an unlawful result, whether or not it is at fault.

When is the Administration liable for patrimonial responsibility?

According to Article 32 of Law 40/2015, the Administration is liable for damages caused in:

• Particular due to the operation of public utilities.
• Damages caused as a consequence of the application of legislative acts.
• Damages caused by the application of a rule or rank of law declared unconstitutional.
• Damages caused by the application of a rule declared contrary to European Union law.

Property liability, damage caused by public utilities

It is hereby established that public administrations are liable to individuals for damages caused as a result of the operation of their services. as long as it is not due to force majeure or the injured party’s own fault.

These conditions must be met in order to be able to claim the public administration’s patrimonial liability:

• The damage must be effective and proven, in addition to being unlawful.
• It must be an economically assessable damage, it presents complications if they are moral damages.
• It must be possible to individualize the damage.
• It must be as a result of the operation of public services.
  • This requirement has been relaxed to any action, management or activity of the Administration, in addition to any task inherent to the administrative function.
• The causal relationship between the administrative action and the damage must be direct, immediate and exclusive, without the intervention of other factors.
• The damage cannot be a consequence of force majeure or due to the injured party himself. The circumstances must be proven by the administration.

Currently, case law is inclined to interpret the requirements, preventing the generalized liability of the Administration for damages that are not attributable to it.

Liability, damage caused by legislative acts

In addition to the previous assumption, the obligatory patrimonial response of the Administration for damages caused to individuals as a result of the application of legislative acts.

The requirements are:

• It is a legislative act of anon-expropriatory nature as it explains the implicit damage in addition to the economic compensation.
• Damages that the citizen has no legal duty to bear.
• Compensation for damages must be contemplated in the legislative acts, being applied in the terms established therein.
  • If case law qualifies the requirement, it may extend administrative liability to other cases, taking into account certain circumstances.

In addition to that, citizens have the right to demand the patrimonial responsibility of the Administration, where the above mentioned and the following requirements are met:

• When the damages derive from an unconstitutional rule of law.
• When the damages derive from a rule that contravenes community law.

Financial liability: procedure to demand it from the Administration

This comes in Title IV of the LPAC, taking into account the specificities established for the patrimonial liability. The procedure must be processed before going to the contentious-administrative route, if the administrative route has been exhausted without success.

The procedure may be initiated ex officio or at the convenience of the individual or even of another Administration other than the one that has caused the damage.

The deadline for initiating the procedure is one year, the request must also describe the damage caused, its economic evaluation, the causal relationship between the damage and the Administration, as well as the time at which the damage occurred.

After having investigated and taken evidence, the procedure will be resolved within a maximum period of 6 months, the claim being understood to have been rejected by negative administrative silence.

Against this resolution it is possible to reposition or go to litigation. On the other hand, the Administration has the right of return action to claim against the person directly responsible for the damages.

Property liability: How much is the indemnification

Economic and moral damages must be covered. The calculation is usually made by going to the valuation scale for the use and circulation of motor vehicles, although it is a reference tool it is not the only applicable method.

In the event that the damage has been caused by a contractor or concessionaire of the administration, the individual may choose to claim against the latter through civil proceedings or claim against the Administration, although it is not obliged to respond in any case.

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