Applications of Civil Responsibility in Case of “Nemo Auditur Propriam Turpitudinem Alegans“ Rule
The “nemo auditur propriam turpitudiniem alegans” adage (nobody is being listened when he presents his own indecency), as an application of the civil criminal responsibility, has as origin the action called condictio by means of which the person who executed his obligation based on an immoral convention (condictio ab turpen causa) could ask the return of the services. But, when both the plaintiff and the defendant were guilty of immorality, the repetition action should have been rejected based on the "in pari causa turpitudinis cessat repetitio" adage that represents a primitive appearance of the “nemo auditur propriam turpitudiniem alegans” rule.The rule fundament results even from its wording that allows us to see its moral nature that represents actually a refuse to act for the ones who want to use their embarrassing actions in front of the justice.In other words, we must notice the fact that the doctrine did not have a unitary position regarding the application of the rule and the opinions are shared because some authors accept with no reserves the application of the rule, while others declare to be against its application.Regarding the jurisprudence, if it is unitary when it affirms that the liberality by means of which we follow the start, the continuation or the restart of a concubinage relation has a purpose against the social cohabitation rules, and the sanction of a juridical act with such a cause is the absolute nullity , and this is not unitary anymore regarding its position against the ending of such an approach. In most of the cases, the courts are happy to find that the respective obligation has an illicit cause according to art. 968 of Civil Code without specifying if it is immoral or not, in order to make possible the application of the rule in the eventuality of promoting a returning action of the party who had received the liberality with such a cause. But, if we consider we are in the presence of an immoral convention, and the nemo auditor propriam turpitudiniem alegans rule becomes applicable, the return of the services is not possible anymore. Regarding this rule application, we must notice that its application is actually a civil sanction that consists in non-accepting the access to justice, by means of the returning action of the parties that are guilty of the immorality of their convention, that are thus lacked of the protection offered by the law, just because of the insecurity that could be produced by the non-acceptance of such a protection.Most of the cases where the nemo auditur propriam turpitudiniem alegans rule exists are circumscribed to the obligations that are born from a contract, and regard the repetition action or the returning one. Such a way of resolving conflicts between two parties is also a mediation, which takes the form of a contract that confirms the willingness of parties to prevent and extinguish the conflict.
Volume (Year): 1 (2010)
Issue (Month): (April)
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