The figure of the third party introduces great complexity into the legal relationship of obligation. In its most condensed form, the relationship pits only two people against each other (usually the creditor and the debtor) and that is enough.
The delimitation of the sphere of imputation of each subject is essential, right from this simple matrix. The obligatory relationship based on a "division of labour model" (and, within this, various relational paradigms) requires a different approach to the one that has been adopted.
Furthermore, within a broad sphere of relevant subjects, the delimitation of different levels of participation (and responsibility) in the obligatory relationship becomes more intense.
Finally, the figure of the third party, an element external to this fundamental relationship, implies a necessary adaptation of the system, which legal dogmatics tries to accommodate, step by step, with solutions based on a set of fundamental vectors. The role of private autonomy, good faith, trust and legal certainty are criteria, justifying a fundamental consideration of interests outside the primary scope of the obligation. The unveiling of this dogma, purifying any specific framework, either through the phenomenological analysis associated with it or by delving deeper into the basic institutes, corresponds precisely to the method that is seen as appropriate for exploring a topic that is generally lateralised by scientific research (national and international).
A comparative analysis of the solutions of other countries, both those belonging to the Roman-German Family and those of the Common Law, is essential. There is an essential bifurcation of the issue, depending on whether the intervention of the third party in the obligation bond is positive or negative, namely:
1. Delimitation of spheres of imputation
The use of forms of fulfilment based on a segmented and complex division of labour imply a new reflection on criteria of imputation, of acts and of subjective states relevant in the law of disorders of fulfilment.
2. Third party protection and due consideration
The precautionary function, of third party protection, underpins a vast set of solutions. From the outset, in the theory of the legal transaction, it involves investigating the prism of structural effectiveness (as is the case with the contract in favour of the third party and its dialectic), with avant-garde figures calling for strong doctrinal and judicial intervention (as is the case with the contract with protective effectiveness in favour of the third party). From a dynamic point of view, in other words, concrete issues arise in the execution of the obligatory programme, which test the limits of the system's sufficiency (e.g. the rules of appearance in representation or the third party's liability for non-performance), this time from the point of view of external effectiveness. On the other hand, the limits of the transmission of the credit (through lesser-known figures, such as the accession to the credit) or the personal nature of the institutes associated with the credit as a core legal situation are unclear.
As a centre of damage (reflex or ricochet damage), it is particularly difficult to adjust the framework, in particular to include in the sphere of compensation interests that do not belong to the sphere of the person who suffered the wrong (the same happens with fractional or collective damage). The same question arises in the context of fiduciary relationships.
The investigation of all the questions that this subject raises involves a comparative assessment of those that have been used by other legal systems, our counterparts.
3. Third party and third party liability
In a given situation of liability, the third party may also be liable to the injured party. In this context, the third party appears alongside the injured party. The need immediately arises to categorise the liability of these various parties, in a broad sense. The phenomenon of co-participation arises and others, such as instigation, appear alongside it. However, the proper treatment of this reality, which is specific to criminal law, cannot uncritically import solutions or terminology from another branch of law. The dogmatic autonomy of civil liability requires a different methodology. In particular, the clear absence of fundamental regulation of the liability of various agents (it should be noted) for different forms of liability poses serious problems for a system that classifies problematic liability under the same heading of liability (co-authors of the offence or defaulting co-defendants). The consideration, in a German proposal that is gaining increasing traction, of such, let's call it, imperfect solidarity, invites exploration of the issue in the most varied fields and domains (corporate relations, insurance law, family law, etc.). This is often the case with the liability of legal persons, who are materially incapable of acting in the natural world other than through subjects (third parties, from a certain analytical perspective).
Liability for the actions of third parties (the so-called vicarious agent, whether auxiliary or representative of the obligor) has also sparked heated discussion about the limits of liability independent of fault. The most recent proposals to create new areas of liability, such as fault for the organisation of legal persons, emerge from the perspective of protecting third parties in a structural relationship.