THE DISTINCTION BETWEEN DAMAGES AND LOSSES AND COMPRENSATION FOR AN UNLAWFUL ACT IN BOLIVIAN CIVIL LAW, AND THE DIFFERENCE REGARDING THE UNLAWFUL ACT SPECIFIC OF CRIMINAL LAW
CIVIL LAW AND CIVIL PROCEDURE
Introduction. –
In Bolivian legal practice, the terms damages and losses and compensation for an unlawful act are frequently used interchangeably in lawsuits, court rulings, and even in legal scholarship. However, from a technical-legal perspective, the two concepts are not equivalent. While one identifies the economic content of the reparation, the other constitutes the legal basis giving rise to the obligation to indemnify.
Correctly distinguishing between these two legal concepts is fundamental for properly drafting a complaint and for correctly substantiating claims for compensation.
The unlawful act as a source of civil liability. –
We understand that the formation of a contract (legal transaction) entails performance obligations and sanctions for either party in the event of non-performance.
Extracontractual civil liability, however, arises when a person causes harm to another through unlawful conduct attributable to intent (*dolo*) or negligence (*culpa*). In such cases, the legal system imposes an obligation to fully redress the harmful consequences resulting from the unlawful act.
The purpose of civil liability is not to punish the person who caused the harm (a power specific to Criminal Law), but rather to restore—to the extent possible—the patrimonial or non-patrimonial balance disrupted by the author's unlawful conduct.
For compensation for an unlawful act—as regulated by Article 984 of the Civil Code—to be granted, four prerequisites must generally be met:
• The existence of an unlawful act: Legal doctrine—as defined in Supreme Order (Auto Supremo) 325/2013—interprets the appellant's claim based on the principle of iura novit curia (the court knows the law). The claim seeks to have the defendant compensate for moral damages suffered after the commission of a criminal offense was proven; that is, to provide compensation for civil liability arising from a crime, with the ruling specifically classifying this as moral damage.
• The occurrence of actual damage: Merely requesting financial compensation for an isolated event is insufficient. In cases where the damage stems from an act that also constitutes a crime, the existence of a final, enforceable criminal conviction is of particular importance in establishing the unlawful act itself and the perpetrator's liability; however, this does not absolve the plaintiff of the burden of proving the existence, extent, and quantification of the damages for which compensation is sought.
• The causal link between the act and the damage: A legal act is defined as lawful or unlawful conduct to which the law attaches legal consequences, while damage is defined as a detriment experienced by a person that the legal system deems compensable. When these two elements are present, the compensation may be quantified in monetary terms.
• The imputability of the perpetrator: This implies that the act must be attributable to the perpetrator under the liability regime established by law, whether based on intent (*dolo*) or objective fault (*culpa*).
The absence of any of these elements prevents the obligation to provide compensation from arising.
What are damages and losses?
Damages and losses constitute the economic component of the compensation that the party responsible for the harm must provide.
This category includes:
• Actual loss: the actual loss suffered by the victim.
• Lost profits: the legitimate earnings the victim failed to receive as a result of the harmful act.
• Non-pecuniary damage: harm to non-patrimonial interests that is compensable under the legal system.
Consequently, reparation constitutes the legal obligation to make amends, while damages represent the economic content of that reparation.
What is reparation for an unlawful act?
Reparation for an unlawful act is the legal consequence arising from extracontractual civil liability. It is the legal obligation incumbent upon the person who caused the harm to fully redress the losses resulting from unlawful conduct.
It is not a type of damage itself, but rather the legal basis that legitimizes the claim for compensation.
Therefore, in a civil lawsuit, the unlawful act constitutes the cause of action, whereas the damages represent the economic claim for which reparation is sought.
Practical application. -
This distinction is clearly evident in proceedings arising from the offense of issuing a bad check (insufficient funds).
If there is a final criminal conviction establishing the defendant's criminal liability, that decision is a highly significant element in proving the existence of the unlawful act.
However, in the civil proceedings, the victim must demonstrate the damages actually suffered, their monetary value, and the causal link to the unlawful conduct. A criminal conviction does not automatically determine the amount of compensation.
Thus, the legal basis for the lawsuit will be reparation for an unlawful act, while the object of the claim will be the payment of damages proven during the proceedings.
Conclusions. –
Conceptual precision regarding these two concepts has significant practical implications when structuring a complaint, defining the cause of action, and determining the scope of the claim for compensation.
Compensation for an unlawful act explains the basis of the obligation to indemnify, whereas the damages themselves determine what must be repaired and to what extent.
Properly distinguishing between them strengthens procedural practice, avoids conceptual confusion, and contributes to the correct application of civil liability within the national legal system.
Hugo Soleto Espinoza
Litigation and Corporate Lawyer
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