Contractual responsibility of the attorneys

Commentary on the Supreme Court of 22 April 2013

Abstract

When it is a question of professionals' fault, the Jurisprudence of the T.S., as for the infraction of the duties that the profession contains, it is required the test of the fault, since to act culprit, neglector. Contract of lease of service that sublies in the relation between attorney and client demands from that one the diligent fulfillment of his services that derives from the general procedure on obligations and they impose the fulfillment on the Attorney «with the maximum zeal and diligence» of the mission of defense that is entrusted him, as well as the submission to lex artis or technical requirements. When it is a question of a professional responsibility, the jurisprudence and the doctrine have repeated that the obligation of the professional is always of means or activities and not of result, so that the professional, if it acts in conformity with lex artis, he cannot be considered to be a person in charge of the result, and the actor to have the load of proving that happiness has been infringed by the professional lex artis, without a mere affirmation is enough, and is considered to be, in general, a negligence that consists of stagnation or lack of readiness, as a result of which hurts and prejudices have taken place, since in this case where the professional negligence of the pleaded one led his client to losing his creditor's condition of domain when did not request the preventive annotation of demand, which supposed that the buyer who did not pay the whole building could sell to a third party, must indemnify the pleaded one for loss of opportunity. Since the hurt consisted of the frustration of a judicial action there must be realized a market calculation of opportunities of good success of the lost action. It had been an advisable credit requested with the first demand or with character previous his interposition the measure to protect of preventive annotation of the demand and on not having made it the pleaded one omitted the diligence exigible in the performance of his professional assignment, since it did not apply the indispensable juridical knowledge that they had prevented that the plaintiff was losing his creditor's condition of domain and the inscription in the Record of the Property of this measure to protect they had prevented the sale to a third party since it happened finally.