Atypical torts

Abstract

This work synthesizes the origin and the theoretical development of the expression ‘Atypical Illicit Act’. The research focuses only on the formulation made by Atienza y Ruiz Manero in two books: “Las piezas del derecho” and “Ilícitos atípicos”, and seeks to evidence three conceptual changes that the authors introduce in relation to imperativist theories: a) the meanings of the acts; b) the notion of torts; c) the notion of non-criminality. Since the term ‘Atypical Illicit Act’ and its contraction ‘Atypical Torts’ are a post-positivist manifestation, this paper considers that this expression was developed, on the one hand, as a theoretical criticism to the 'positivist' or 'formalist' postures and, on the other hand, as an interpretative theory focused on how judges must resolve cases not explicitly regulated according to the values recognized by the normative system.