Claiming Damages in Spain: How the Legal Process Works

🇪🇸 Read the original in Spanish

When we suffer financial, physical, or moral harm due to the action or omission of another person or company, the Spanish legal system grants us the right to be restored to the state we were in prior to the damage. However, obtaining fair compensation is neither an automatic nor a simple process; it requires a deep understanding of the legal mechanisms, limitation periods, and the evidence necessary to convince the courts. In this article from AbogadoAI, we break down with scientific rigour and accessible language how claiming damages works in Spain, equipping you with the key tools to successfully defend your rights.

The Legal Framework: What Does the Spanish Civil Code Say?

Claiming damages in Spain finds its cornerstone in the Código Civil (Civil Code - CC). Depending on whether or not a prior contractual relationship existed between the parties, the legislation distinguishes between two major types of liability:

1. Contractual Liability (Article 1101 of the Civil Code)

This applies when the damage is caused by the breach of obligations derived from a contract (whether it is a rental agreement, a sale and purchase agreement, a provision of services, etc.). *Article 1101 of the Código Civil** strictly establishes: > "Those who in the performance of their obligations should incur in fraud, negligence or delay, and those who in any way should contravene the tenor thereof, shall be subject to indemnity for damages caused."*

2. Extra-contractual / Tort Liability (Article 1902 of the Civil Code)

This arises when there is no prior contract between the person causing the damage and the victim (for example, a traffic accident, a slip and fall in a supermarket due to a wet floor, or dampness caused by a neighbour). *Article 1902 of the Código Civil** is the pillar of this liability: > "He who by action or omission causes damage to another, intervening fault or negligence, is obliged to repair the damage caused."*

The Three Indispensable Requirements to Demand Compensation

For a judge to uphold a claim for damages, it is not enough to have suffered a setback. The jurisprudence of the Tribunal Supremo (Supreme Court) requires the cumulative presence of three elements. If any one of them is missing, the claim will be dismissed:

A) The existence of a culpable or negligent action or omission

There must be human behaviour (active or passive) attributable to a person or entity. Furthermore, this behaviour must be tinged with fault (lack of due diligence) or dolo (willful intent to cause the damage or to breach an obligation).

B) Real, actual, and economically assessable damage

The damage cannot be hypothetical or based on mere conjecture. It must be real and is classified into:

• Daño emergente (consequential loss): The direct and actual financial loss suffered (repair bills, medical expenses, etc.).
• Lucro cesante (loss of earnings): The legitimate profits that have not been obtained as a direct consequence of the damage (for example, the income a taxi driver misses out on while their vehicle is in the repair shop).
• Daño moral (moral damages): The psychological suffering, anguish, or pain endured by the victim, the valuation of which is more subjective but equally compensable.

C) The causal link

There must be a direct and unequivocal cause-and-effect relationship between the negligent conduct and the damage suffered. If the damage would have occurred anyway due to fuerza mayor (force majeure) or the victim's own fault (concurrence of faults), the causal link is broken or mitigated.

Practical Step-by-Step Steps to File a Claim

If you find yourself in a situation where you have suffered harm, you must follow a strategic itinerary to maximize your chances of success:

1. Exhaustive collection of evidence: This is the most critical phase. You must keep invoices, repair estimates, medical reports (if there are personal injuries), photographs of the location or the damaged object, contracts, emails, WhatsApp messages, and notary acts. If there were witnesses, obtain their contact details.
2. Quantification of the damage (Valuation): You cannot claim "a random figure". You need an expert report (informe pericial) drafted by a specialist (doctor, architect, mechanic, economist) that translates the damage into an exact and justified financial figure.
3. Prior extrajudicial claim: Send a formal claim via a reliable method that provides legal proof of delivery (preferably a burofax with acknowledgment of receipt and certification of content). In this document, you must state the facts, quantify the damage, and grant a reasonable period (usually between 10 and 15 business days) for them to respond or compensate you.
4. Mediation or conciliation (Optional): If the opposing party responds but an agreement on the figure is not reached, you can attend a conciliation act in the Juzgado de Paz (Justice of the Peace Court) or the Juzgado de Primera Instancia (Court of First Instance), or go to a private mediator to avoid a lawsuit.
5. Judicial route (Civil lawsuit): If the friendly attempt fails, a lawsuit (demanda) is filed before the Juzgados de Primera Instancia of the place where the events occurred or the domicile of the defendant, in accordance with the Ley de Enjuiciamiento Civil (Civil Procedure Act - LEC).

Key Deadlines, Amounts, and Figures You Must Know

The time factor is the worst enemy of claims for damages. In Spain, the limitation periods (plazos de prescripción) vary drastically depending on the nature of the claim:

• 1 year: This is the general limitation period to claim extra-contractual liability (falls, medical negligence, traffic accidents) according to *Article 1968 of the Código Civil***. The countdown begins when the victim became aware of the damage or, in the case of physical injuries, from the moment the affected person receives their final medical discharge and their sequelae (long-term effects) are determined.
• 5 years: This is the general limitation period to claim contractual liability (breach of contracts signed after the reform of October 2015), as provided for in *Article 1964 of the Código Civil***.
• Procedural representation limits (LEC):
• If the amount claimed is less than €2,000, you can file the lawsuit and attend the trial *without the need for a lawyer or a procurador** (court representative) via a Juicio Verbal* (Verbal Trial).
• If the claim exceeds €2,000, the intervention of both a lawyer and a procurador is mandatory.
• Juicio Verbal vs. Juicio Ordinario: Claims of up to €15,000 (following recent procedural reforms) are processed through the Juicio Verbal, which is faster and more streamlined. Those exceeding €15,000 will be processed through the Juicio Ordinario (Ordinary Trial), which is more complex and formal.

Concrete Examples of Claims with Figures

To understand how these concepts are applied on a day-to-day basis, we analyze two common scenarios:

Example 1: Breach of a Rental Contract (Contractual Route)

• The case: María rents a commercial premises for €1,200 per month to open a café. The landlord committed by contract to hand over the premises with the electrical installation updated according to current regulations. Upon attempting to open, the technical inspection denies the license because the installation is obsolete and dangerous. It takes María 3 months to be able to open because she must hire an emergency electrician and the landlord refuses to pay for the renovation.
• The quantification of the damage:
• Daño emergente: Invoice of the authorized electrician to adapt the installation: €3,500.
• Lucro cesante: Loss of estimated net profits during the 3 months the business was closed (calculated based on the business plan and the average of the sector in the area): €2,500 per month (Total: €7,500).
• Rent paid in vain: €3,600 (3 months without being able to use the premises).
• Total claimed by María: €14,600. As it exceeds €2,000, María will mandatorily need a lawyer and a procurador to file the civil lawsuit.

Example 2: Dampness Due to Neighbour's Negligence (Extra-contractual Route)

• The case: John, an expat resident in Málaga, suffers flooding on his living room ceiling because his upstairs neighbour left a tap running. The neighbour ignores the issue and their insurance does not respond.
• The quantification of the damage:
• Daño emergente: Quote from a painter and plasterer to repair the ceiling: €1,100. Invoice from a damp specialist who certifies the source of the damage: €350.
• Total claimed by John: €1,450. Since this figure is under €2,000, John can file the lawsuit in court by himself, filling out a standardized Juicio Verbal form, without mandatorily incurring lawyer expenses, although having prior professional advice is still highly recommended.

Mistakes You Must Avoid

Making a technical mistake in the initial phases can ruin an entirely legitimate claim. Pay special attention to these common errors:

• Allowing the deadline to expire: Especially in the extra-contractual route (falls, accidents), the 1-year deadline passes very quickly. If you do not send a burofax before the year expires, you will lose the right to claim forever. Remember that a burofax interrupts the limitation period and resets the clock to zero.
• Not keeping original invoices: "Estimated" quotes or proforma invoices are not usually accepted by judges as proof of actual expenditure. You need final invoices and, if possible, bank proof of having paid them.
• Claiming exorbitant amounts without justification: Demanding millionaire sums for "moral damages" without a psychological or expert report to back it up usually results in the judge partially dismissing the lawsuit, which can condemn you to pay the court costs (costas procesales) of the trial.
• Cleaning or repairing before taking photos or getting expert assessments: If you repair the damage immediately without leaving graphic or expert evidence of the severity of the original problem, you will be left without proof to demonstrate the magnitude of the harm in court.

Frequently Asked Questions (FAQ)

What happens if the person who caused the damage declares bankruptcy?

If the defendant is judicially declared insolvent (they have no money in their accounts, no garnishable salary, and no properties in their name), the ruling in your favour will be difficult to execute immediately. However, in Spain, judicial debts do not expire for 5 years regarding their execution, and future asset searches and embargoes can be requested if the debtor's financial situation improves (for example, if they find a job, receive an inheritance, or acquire a vehicle).

Can I claim damages if the fault was shared?

Yes, this is what civil law calls "concurrence of faults" (concurrencia de culpas). If you had part of the responsibility in the event, the judge will not cancel the compensation, but will reduce it proportionally. For example, if you are hit by a car but were crossing imprudently at an incorrect place, the judge may determine that you were 30% at fault and the driver 70%, reducing the total compensation by that percentage.

How long does a lawsuit of this type usually take to resolve?

It depends on the workload of the court assigned to your case and the type of procedure. A Juicio Verbal (claims of up to €15,000) usually takes between 6 and 12 months. A Juicio Ordinario (higher amounts or complex cases) can take between 12 and 24 months, not counting potential appeals before the Audiencia Provincial (Provincial High Court).

Do I have to pay taxes on the compensation received?

As a general rule, compensation for personal injury (physical or psychological) recognized by a court or in an act of conciliation is exempt from Personal Income Tax (IRPF). However, compensation for material damage or loss of earnings (money you failed to earn) may be subject to taxation, as they are considered a compensation of income that must be taxed as business income or capital gains.

In Summary

• Two routes of claim: Contractual (Art. 1101 CC, 5-year limitation period) and extra-contractual (Art. 1902 CC, 1-year limitation period).
• Requirements for success: You must prove the defendant's negligence, the existence of real damage (consequential loss, loss of earnings, or moral damage), and the causal link.
• Evidence is king: Without expert reports, invoices, photos, and prior burofaxes, the chances of winning in court are drastically reduced.
• €2,000 limit: Below this figure, you do not need a lawyer or a procurador to sue, although prior professional advice avoids fatal mistakes of form.
• Interruption of deadlines: A correctly drafted burofax interrupts the limitation period and grants you additional time to negotiate or prepare the lawsuit.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.