Civil law, since the crystallization of its basic theories, has been accustomed to dividing civil liability into contractual liability arising from a breach of an obligation originating in the contract, and tort liability based on harm to others outside the scope of the contractual relationship. This division has, for a long time, provided a clear framework for determining the terms and effects of liability, and has contributed to achieving a degree of stability and legal certainty.

However, the question that imposes itself today is not about the soundness of this division in principle, but rather about its adequacy to accommodate modern patterns of legal relations that no longer easily fall under one of these two descriptions.

This division assumed the existence of a clear dividing line: either a contractual relationship based on a negotiated will, or an incident of harm occurring in the absence of any previous legal bond. However, today this assumption faces increasing cases in which the dogmatic overlaps with the non-dogmatic, and in which the boundaries separating the two fields are weakened.

This problem appears, for example, in relationships based on general, non-negotiated terms, such as service contracts and standard subscriptions, where there is a prior legal relationship in terms of form, without necessarily expressing an equal negotiating will. If damage arises in this context, characterizing it as a purely contractual breach may seem inadequate, and considering it as an independent tortious act does not accurately reflect the nature of the existing relationship.

The same problem arises in the pre-contract stage, when serious negotiations arise and legitimate trust is built between the parties, and then one of them causes harm to the other without a contract having yet been concluded. In this case, it is not correct to characterize the liability as contractual due to the absence of a contract, nor as tort in the traditional sense, because the damage did not occur in a legal vacuum, but rather within the framework of an emerging relationship that has its own characteristics.

The limitations of the traditional division are also evident in some professional or institutional relationships, such as the medical relationship or the relationship of providing public services, where there is a prior bond and a legitimate expectation of care, without the contract, in its classical sense, always being present. However, the harm that may arise in this context is difficult to accurately characterize within either of the two parts of the traditional division without some affectation.

The matter is not much different in relationships managed through technical or automated systems, where damage may arise as a result of a defect in the system or the automated application of a standard rule, without there being direct human action or a personal breach of a contractual obligation. Here too, reality raises a quiet question about the suitability of traditional conceptual tools for describing this type of responsibility.

In all of these cases, the problem is not in the principle of compensation or its entitlement, but rather in the conceptual framework in which this damage is included, and the resulting difference in the terms of responsibility and its effects. This opens the door to questioning whether the existing binary division, despite its solidity, is sufficient in itself, or whether it needs a more flexible reading that accommodates these borderline cases without compromising the general framework of civil responsibility.

Acknowledging the existence of such cases does not mean calling for the demolition or replacement of the traditional division, but rather it may be an expression of its vitality and ability to develop. Division, which is understood as a general organizational framework, not a rigid template, is still able to perform its function, as long as it is allowed a margin of flexibility that takes into account the transformations of reality.

The question that remains open, without a rush to answer, is whether this division, in its current form, is still able to accommodate these complex relationships efficiently and fairly, or whether the development of reality requires a more broad reading of the function of civil responsibility and its limits.