The So-Called Guarantee (Protective) General Normative Duty of Reparation

Abstract

In order to instil to at least a certain extent additional safety into primary legal relationships whilst not undermining the principle of equality, civil law has made use of the institution of special guarantees that it has regulated by so-called protective legal norms. Civil law uses these guarantees, which according to their nearest legal basis may be termed general normative guarantees (guarantees ex lege in the wider sense), to protect (strengthen) primary legal relationships, and thus also subjective rights which are their necessary constituent, by imposing on legally bound subjects from primary legal relationships additional (guarantee, protective) legal duties which are activated a) through the violation of primary legal duties, i.e., when observed from the standpoint of subjective rights, through the violation of subjective rights correlative to these duties, in which case the conduct in question is wrongful, but also b) through the mere interference with subjective rights whilst not violating the legal duty (e.g., duty of reparation in the case of causing damage in a state of necessity or in the cases of extraordinary annulment of an administrative legal act), in which case the conduct in question is in accordance with law. It may, therefore, be said that the indirect source of so-called guarantee (protective) duties are primary subjective rights thereby protected. Of course, any such guarantee (protective) legal duty is, in accordance with the principle of equality of subjects in civil law relationships, accompanied by a correlative subjective right (by legal possibility, and not competence which includes both a right and a duty) of the injured party to demand from the obligee voluntary fulfilment of such a duty. Furthermore, in order to be effective this guarantee (protective) duty is also accompanied, but now in accordance with the principle of subordination, by competence (right and duty) enjoyed by the sanctioning subject (the competent provider of legal protection) to force, through inexorable imposition, the violator of the guarantee (protective) legal duty to fulfil this duty and in this way, in ultima linea, to confirm that this additional duty is a legal duty.

Keywords: duty of reparation, guarantee duty, protective duty, general tort clause