PIERDEREA ȘANSEI DE A OBȚINE UN AVANTAJ SAU DE A EVITA O PAGUBĂ – O NOUĂ FORMĂ DE REPARARE A PREJUDICIULUI REGLEMENTATĂ DE CODUL CIVIL

The loss of the chance to obtain an advantage or to avoid a damage represents a new form of reparation of prejudice regulated by the Civil Code, enshrined by the provisions of Article 1385 (4) of
the Civil Code, and represents a distinct category of prejudice reparable by engaging in tort civil liability, which concerns those negative consequences directly caused by the commission of an
illegal act that consist in missing the real and serious possibility of the occurrence of a favourable event for the victim’s life, which could have brought him fulfilment in his personal or economic life by the carrying out of some projects.
Therefore, the loss of a chance means the loss by a person of the possibility to achieve a gain or, as the case may be, to avoid a damage, which may result in causing a prejudice to that person.
De lege lata, we mention that the prejudice caused by the „loss of the chance to obtain an advantage” can be invoked within the framework of tort (extra-contractual) civil liability, but also in the
field of contractual civil liability whenever by the non-fulfilment of the legal or contractual obligations such consequences have occurred. This prejudice could be claimed both by the direct victim of an illegal act and by those close to them if they prove that they suffered, through ricochet, such a prejudice.
In order to have a reparable prejudice, the chance of occurrence of the favourable event for the victim must be as real as it is serious, which is assessed differently, whether or not the victim was in
the process of taking the chance at the time when the event that compromised the possibility to achieve it occurred, and this prejudice must be in a direct causal link with the illegal act committed by the responsible person.
The assessment of the chance shall be carried out in relation with two criteria, namely the examination of the circumstances in which the illegal act was committed, on the one hand, and the
special situation in which the victim was at that time, on the other hand.
With regard to the features of the prejudice, we specify that it must be certain (certain, unquestionable) and real (undeniable, effective, indisputable), and not an eventual one (possible,
probable), the loss, therefore, must be actual.