Legal liability of mentally incapacitated persons (liability based on equity)

ABSTRACTThe civil code, aims to provide a wide scope of protection for persons who lackcapacity of judgement. Because these people have mental illnesses or lack capacity dueto mental disability (intellectual absence) or they are minors, they have no capacity toact reasonably. This is the reason for their dependance on protection.Mental health and incapacity law concerns the operation of law as it affects thosewho suffer. Article 15 of the Civil Code recognises no juridical effect to the acts of peoplewith mental incapacity. Therefore they do not have capacity to act or to commit torts. Inthat sense, they can not be held liable for actions or acts they commit, although someexceptions are provided for by the law. Amongst these exceptions, maybe the mostsignificant is the responsibility based on equity laid down in art. 54 § 2 of the Code onObligations. Pursuant to this provision, in view of the circumstances of the specific caseand if equity so requires, the judge can rule that the damage caused by a harmful actcommitted by a mentally incapacitated person be compensated in a due manner by theperson in question.Liability based on equity derives from the ideas of social justice and balancingobligations, and aims to protect the mentally incapacitated on the one-hand andcompensate the damage suffered by the other party on the other. This way, at least apartial balance is established between competing interests.Although regulated as part of tort law, due to its current conditions and scope ofapplication, equity is a type of strict liability deriving from the idea of justice. Becauseliability based on equity only arises when equity so requires, the legal character andconditions of this type of liability differ from tort liability and other types of strictliability. These questions have been analysed in our study.