Duty of Care and Omission

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Duty of Care and Omission

Introduction

The concept of tort is understood as the obligation to compensate the damage caused, so positive that its genesis lies in the provisions governing the sources of obligations. The art1089 CC states that the sources of obligations may have their origin in "the law and contracts, and the wrongful acts or omissions or involving any kind of fault or negligence." Thus, wrongful acts, whether criminal or civil liability also arises aimed at alleviating the damage they generated.

Tort law is a law that deals with the reappearance of the damage. However, sometimes when the repair thereof is difficult, the law allows the injured party redress through compensation for the damages incurred. This legal obligation compensate the damage or repair the damage generated in the bound, normally, the courage never commit the act which led to the damaging event, under penalty of again in the unlawful conduct that resulted in the need repair. In this sense, we can say that tort law is also a preventive law, but is not the most representative of the same peculiarity .

The duty of care refers to the obligation to behave in a prudent and necessary care to be satisfied. The purpose of the duty of care is to avoid unnecessary risk to others and the mandatory liability for negligence.

The analysis does emphasis in the legal status of any malice, but not before revised general notions and some strictly legal data of guilt, stopping on the concept that characterized form of culpability as it is: the lack of duty of care, then linking this concept to notion of recklessness in the context of intentional behaviour and its characterization in terms of highlighting the distinctions between the unlawful conduct and reckless any wilful misconduct . The omission is the failure to perform a certain task or obligation.

The crimes of omission are divided into:

Own, which constitute the non-fulfilment of an action imposed by the criminal law, considered as disobedience. This type of crime is explicitly typed by the legislature.

Improper, also said commissive offense by omission that are configured with the non-impediment of a harmful event. This criminal case is not being typed by the legislature and is born from the conjunction of the art.

Elements of the offense are just omission:

Typical situation (a set of assumptions that give rise to the obligation to take action)

Conduct by omission

Material possibility for the organization to take action and prevent the event

Legal Obligation

The causal link required to integrate an improper omission offense requires more than the normal pattern for the person who does not have acted had the legal obligation to take action. The legal obligation can find its source on the theory of clover in the law, in the previous contract and dangerous action . The subject must then play a "position of a guarantee" against the protected property, consisting of a bond of protection between the guarantor and a good system of law determined by the inability ...