Abstract

CASTRONOVO, Carlo. The violation of relationship as fundament of contractual liability. Rev. Derecho Privado [online]. 2012, n.23, pp.35-52. ISSN 0123-4366.

Abstract Obligation is a complex structure which, as culpa in contrahendo makes clear, can stay without the duty of performance. This has been accepted by the Italian Corte di Cassazione, being critized by some author. The argument against the idea of obligation without a primary duty of performance specially regards liability of medical doctors working in a hospital. They do not have any duty of performance as to the patients, since they are obliged to the hospital. It is hard, though, to place them with regard to patients at the general level of the alterum non laedere principle presiding extracontractual liability. Their professional position creates a reliance which reflects on liability. Consequently this one has contractual nature, precisely demonstrating that there can be obligation without a duty of performance. The implication is that relationship not performance constitutes the essence of obligation.

Keywords : obligation; obligation without a duty of performance; duties of care; contractual liability.

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