Successors Beware

Civil Tort Action
Environmental Restoration Action
Administrative Responsibility

Civil Tort Action

Upon the transfer of assets, a civil claim for damages is subject to the general principles of tort law established in the Civil Code, and is similar to negligence as a cause of action under common law. According to the code, there is tort liability when a person, through an action or an omission, wilfully or negligently causes damages to a third person. Therefore a claim of this nature will require the existence of the following elements:

• an action or omission;

• wilful misconduct or negligence (fault);

• causation; and

• damages.

Consequently, in the event of the purchase of assets, the new owner will generally not be held liable for damages that might have been caused by the former owner because their activities and responsibilities are independent. An entity or individual will only be held liable for environmental damages caused by its own negligent or intentional actions or omissions.

However, the accumulative, chronical and long latency periods that characterize environmental damages make probable the overlapping and confusion of impacts of the activities of two different juridical persons. Also, the duty of care could make the new owner liable for those damages originating in a condition already existing in the facilities, if these damages are foreseeable and avoidable (liability for negligent omission).

Environmental Restoration Action

The environmental restoration action is established to obtain restoration of environment that has been negligently or intentionally damaged (Articles 51 and 53 of the Environmental Framework Law).

In Article 2 the term 'reparation' is defined as "the action of restoring the environment, or one or more of its elements, to a similar quality as that which it had before the damage or, if not possible, restore its basic conditions."

The possible complainants of this action are referred to in Article 54 and are:

• natural or juridical persons, whether public or private, that have suffered some sort of damage;

• the municipalities for environmental damages existing within their borough;

• the state through its attorney general; and

• any person through the respective municipality.

This action must fulfil the same elements as the civil action. Consequently, a new owner would not be held liable to restore any harm that occurs as a result of contamination caused by the former owner.

Administrative Responsibility

General provisions of the Health Code give the Health Service the authority to prevent and control any action, situation or condition that may involve a risk to the health of the public.

The Health Service may impose penalties such as fines. Alternatively, the Health Service may classify the facility as hazardous and may trigger the shutdown of the facility.

Regarding soil contamination, there are numerous kinds of sanitary and environmental regulations that might indirectly apply in the case of this contamination, including:

• land use regulations;

• air emission standards;

• wastewater discharge emission standards; and

• solid waste disposal regulations.

For further information on this topic please contact José Manuel Díaz de Valdés at Carey y Cia by telephone (+56 2 365 7200) or by fax (+56 2 633 1980) or by e-mail ([email protected]).