Sutartinė atsakomybė: grįsta kalte ar be kaltės?
Contractual Liability: for Fault or Strict?

Summary/Abstract: The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues that the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. The author argues that this legal rule is a special rule with respect to the legal rule implemented in Article 6.256(4) of the CC, therefore, a businessman in breach of an obligation to use best efforts is also liable for fault (as the fault is presumed, a businessman can escape civil liability after proving that there is no fault in their actions). As the Lithuanian CC does not contain any general rule indicating that the liability for breach of an obligation to produce a given result is strict, the author argues that liability of a businessman in breach of such an obligation is strict according to Article 6.200(4) of the CC, and that of a party that is not a businessman is based on fault. The author draws the attention to the fact that there are contracts constituting the borderland between strict liability and liability based on fault: the obligations of such contracts are complex and the breach of one duty might lead to strict liability, and of other – based on fault. The author makes the conclusion that, following the civil law systems and contrary to the common law systems and the regime implemented in the analysed compulsory and soft law international documents, Lithuanian law distinguishes the third type of obligations – obligations to guarantee. The breach of such an obligation results in the special type of liability – guarantee liability, which offers special remedies applicable without fault and in certain limited cases – compensation of damages, which requires fault. Systemic, teleological, document analysis and comparative legal methods have been used in the article.

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