People with a mixed career

In Spain, the most prominent lawyer in the development of delict was José Castán Tobeñas (1889-1969). As Professor of Private Law in the University of Murcia, from 1922 he published a treatise (ten volumes) on civil law, which was the widely used by professionals and by students. It was simply “el Castán”. In 1933 he had delivered a lecture, “Towards a new Civil Law”, proposing a cautious approach to “liability without fault”. It was to be accepted out of fairness in “exceptional cases, in which the inequality of those involved would produce notorious injustice, were damage caused without fault not to be compensated”.

Castán was appointed a member of the Supreme Court in 1933 and in 1945 became its President until 1967. One of Castán’s main aims was to update Spanish legal culture by using new legal theories received from other European countries (especially France, Italy and Germany). It has even been said that “it was not unusual for the decisions of the Supreme Court… to follow verbatim Castán’s handbook”.

One of the most important decisions in the field of damages in delict came on the 12 February 1944, with Castán as ponente (that is, the judge who writes the draft decision to be discussed among the members of the Court). A company had a licence to extract sand from a beach, doing so in such large quantities that a neighbouring building of another company suffered serious harm after a storm. The neighbouring company sued the extracting company for damages in delcit, and the defendant asserted that it was authorized to extract the sand. The Supreme Court decided that the defendant had exercised its right correctly from a formal point of view, but not according to the social limits that any right has; it was a case of “abuso de derecho” (abuse in the exercise of the use of a legal right). This theory had been imported from France, and soon accepted by all Courts in Spain, and even was to be included in the Civil Code since 1974 (Art. 7.2).