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- Title
7. Drepturi de pensie. Răspundere civilă delictuală. Preiudiciu rezultat din nierderea unei sanse.
- Abstract
In order to incur tort liability it is necessary the existence of a damage, and among the conditions which that damage should fulfil, shall be that of being certain and repairable. Article 1385 para. (4) of the Civil Code (2013) expressly regulates the damage resulting from the loss of a chance, this type of damage representing the consequence of the loss, by an individual, of the possibility of achieving a gain, or, as the case may be, of avoiding a damage, a situation in which the repair shall be pro rata with the likelihood of obtaining advantage or, if appropriate, of avoiding the damage, taking into consideration the circumstances and the concrete situation of the victim. Moreover, Article 1532 para. (2) of the Civil Code provides for that the damage likely to be caused due to the loss of a chance to obtain advantage may be repaired pro rata with the likelihood of obtaining advantage, considering the circumstances and the concrete situation of the creditor. In order for a damage resulted from the loss of a chance to be certain and repairable, it is necessary that the respective chance be actual and serious, and the loss of chance should be the direct consequence of the tort or of another circumstance for which tort liability is incurred. The proof of the actual and serious nature of the chance was made, within the context in which, because of the failure of the employer to file any amending nominal insurance returns until the settlement time, by the county house of pensions, of the application for granting retirement, the plaintiff „lost the chance“ of being considered, at that time, the period of contribution paid during the period April 2005 - May 2008. Consequently, the loss, by the plaintiff, of the chance of obtaining any advantage (pension rights amounting to a higher amount) shall give rise to repair, in virtue of Article 1359 of the Civil Code, as long as, the documents filed to the proceedings show that the chance would have been essentially important, in the sense that the longer period of contribution, respectively the pension rights in an increased amount would have been recognized to the plaintiff upon admission of the application for granting the retirement (16 March 2016), and not only following the lodge, in virtue of Art. 107 of Law no. 263/2010, of the application for pension recalculation (on 1 December 2016), according to the amending statements.
- Subjects
FILING systems (Documents); PENSIONS; RETIREMENT; DEBTOR &; creditor; INSURANCE
- Publication
Romanian Case Law Review / Revista Română de Jurisprudenţă, 2019, Issue 4, p58
- ISSN
1844-6450
- Publication type
Article