What is the difference between contractual and non-contractual liability?
Contractual liability arises when someone fails to perform, or performs badly, a contract they had with you, such as a lawyer who lets a time limit expire or a company that carries out a renovation badly. Non-contractual liability (liability in tort) arises from damage between people with no contract, such as water coming from the flat upstairs or a dog bite. The most noticeable difference is the time limit for claiming. For non-contractual liability it is three years if the event took place in Catalonia and one year in the rest of Spain. For contractual liability it is five years under the Spanish Civil Code (“Código Civil”) and, in principle, ten in Catalonia.
Alburquerque Abogados
José Manuel AlburquerqueHow they differ
- The time limit. The ten years for contractual liability in Catalonia apply if the contract is governed by Catalan law and are subject to exceptions. In 2026 the “Tribunal Supremo”, Spain's Supreme Court, held that a claim by someone who signed a public deed in Catalonia against the notary who authorised it becomes time-barred after the five years laid down in the Spanish Civil Code, because notarial functions are a matter for the State.
- What has to be proved. For contractual liability, that the other party did not do what they were required to do under the contract and that this caused you the damage. For non-contractual liability, that they acted with fault or negligence, except in cases where the law makes people liable without any need to prove it, such as damage caused by an animal or injuries in a road traffic accident.
- The damage that is compensated. For contractual liability, a party who breaches the contract in good faith is liable for the damage that could be foreseen when it was signed. A party who breaches it deliberately is liable for all the damage that results. For non-contractual liability, all the damage that results from the event is compensated.
- Clauses. A contract may try to limit liability, but not in just any way. In 2026 the Supreme Court confirmed that a law firm's clause limiting its liability to the fees it had charged was void.
- Those liable. If there are several without a contract, each of them can normally be required to pay the full amount. Claiming against one may not interrupt the time limit as against the others. Where there is a contract, the courts also sometimes order all of them to pay the full amount, for example the professionals and the builder on a construction project when it is not possible to separate what each one did.
If it is not clear which applies
Sometimes the dividing line is not clear-cut. The same damage may involve one party liable with whom there was a contract and another with whom there was not, such as the company you hired and another that was involved without having a contract with you. And damage that occurs in connection with a contract, but outside what was agreed, may be treated as non-contractual. The courts do not usually reject a claim for using the wrong label if the facts are properly set out, but the time limit does depend on which it is. So, if in doubt, go by the shorter time limit and claim in writing as soon as possible against everyone who may be liable.
This answer is provided for educational purposes and offers initial guidance on the question raised. Every matter has its own circumstances and nuances that require individual assessment. For that reason, before taking decisions with significant consequences, it is advisable to consult a professional and not to rely solely on this information. Personalised advice makes it possible to apply these explanations to the specific case and to assess the options available with greater certainty.