Approach to the requirement of fault for breach of a contractual obligation in the Bolivian Civil Code of 1975

Abstract

The present exploration constitutes an approach to the doctrinal debate between classic subjective and objective positions, referring to the non-performance of contractual obligations that gives rise to a debtor’s civil liability. The debate starts when, against the objective system, the subjective system frees the debtor of his liability in instances when he would fulfil his duty to observe due diligence –but not his contractual performance– and this compliance is considered a cause of impossibility of non-attributable compliance at his will. The underlying problem arises from the | 11 interpretation of the content and relationship between articles 302 (debtor's diligence) and 339 (responsibility of the not complying debtor) of the Bolivian Civil Code of 1975 and the confusion emerging from the locutions fault-negligence and faultperformance. As a result, the author formulated a hypothesis: the doctrinal discussion is vain since both systems coexist in the content of Art. 339, hence its application only relies on the nature of breach of contract. With the corollary that Art. 302 must be understood restrictively over the subjective imputation system.