REVIEWING THE BASIS OF CONTRACTUAL LIABILITY FOR DAMAGES: LEGAL THEORY AND CASE LAW

Abstract

In this paper, the author examines the basis of contractual liability for damage, that is, the legal nature of liability for breach of contractual obligation, taking into account the doctrinal heritage and relevant judicial practice. Why is someone responsible for the damage caused? Although the legal literature points out that the debtor is liable on the basis of presumed guilt due to breach of contract, the construction of contractual liability according to the provisions of the Law on Obligations (ZOO), especially taking into account Art. 263. ZOO, made the issue of the basis of contractual liability debatable, regardless of the degrees of guilt specified in Art. 266, para. 2. ZOO. Based on the argumentative principle, the paper deals with subjective and objective understanding regarding the basis of contractual responsibility, arguments for one and the other understanding are presented, and certain positions are critically illuminated. Every consideration is tried to be supported by examples from judicial practice. Although the subjective understanding of the basis of contractual liability prevails in domestic legal literature and judicial practice, the understanding of the objective basis of liability due to breach of contract is becoming more and more apostrophized, so efforts are being made to present newer understandings and, in connection with that, the reaffirmation and redefinition of some terms and institutes of obligation law. , such as guilt. The aim is to fully process the set research problem by analyzing it in a new and specific way through discussion, sublimating it and presenting it in a scientific way, while giving certain conclusions and proposals.