Negligence And Rights of Creditors free essay sample

Negligence, also known as Culpa, is the failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Negligence can also be defined as: The omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. Article 1173 Civil Code) The determination of the existence of negligence is concerned with what the defendant did or did not do. The state of mind of the actor is not important; good faith or use of sound judgment is immaterial. The existence of negligence in a given case is not determined by reference to the personal judgment but by the behavior of the actor in the situation before him. (Picart vs. Smith) Is a conduct that creates an undue risk of harm to others. We will write a custom essay sample on Negligence And Rights of Creditors or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The determination of negligence is a question of foresight on the part of the actor. Even if a particular injury was not foreseeable, the risk is still foreseeable if possibility of injury is foreseeable. Forseeability involves the question of that is, the existence of some real likelihood of some damage and the likelihood is of such appreciable weight reasonably to induce, action to avoid it. Culpa Contractual (Contractual Negligence) Culpa contractual or contractual negligence are negligence in contracts resulting in their breach. It is governed by CC provisions on Obligations and Contracts, particularly Articles: 1170 to 1174 of the Civil Code. In Culpa Contractual: The foundation of the liability of the defendant is the contract. In breach of contract committed through the negligence of employee, the employer cannot erase his primary and direct liability by invoking exercise of diligence of a good father of a family in the selection and supervision of the employee. 2. Culpa Aquiliana (Quasi-Delict) Culpa Aquiliana is negligence which by itself is the source of an obligation between the parties not so related before by any preexisting contract. It is also called tort or quasi-delict and is governed mainly by Article 2176 of the Civil Code. Culpa Aquiliana: It is a separate source of obligation independent of contract The presumptive responsibility for the negligence of his servants can be rebutted by proof of the exercise of due care in their selection and supervision. Only involves private concern. The Civil Code by means of indem-nification merely repairs the damage. Includes all acts in which any kind of fault or negligence intervenes. Liability is direct and primary. Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done (Article 2176 Civil Code). Essential Requisites for a quasi-delictual action: 1. Act or omission constituting fault or negligence. 2. Damage caused by the said act or omission. 3. Causal relation between the damage and the act or omission. 3. Culpa Criminal (Criminal Negligence) Culpa Criminal or Criminal Negligence is negligence resulting in the commission of a crime. The same negligent act causing damages may produce civil liability arising from a crime under Article 100 of the Revised Penal Code, or create an action for quasi-delict under Article 2176 of the Civil Code. It is governed by Article 365 of the Revised Penal Code. Culpa Criminal: Affects the public interest. The Revised Penal Code punishes or corrects criminal act. Punished only if there is a penal law clearly covering them. Liability of the employer of the actor-employee is subsidiary in crimes. The 3 kinds of negligence furnish separate, distinct, and independent bases of liability or causes of action. A single act or omission may give rise to two or more causes of action.