First of five pieces on responsabilidad patrimonial del Estado, the claim for damages against the Mexican State. This one covers the concept, its constitutional basis and where it came from. The next four cover the damage the law compensates, the procedure, the compensation itself and litigation strategy, including what changes when the claimant is a foreigner. Written for the Spanish edition and adapted here by the same author.
The problem
Government activity causes damage to private parties more often than people assume. A public works project is badly executed and a sinkhole opens under a parked car or next to a building. A public service is delivered below standard. An authority issues an order with no legal basis and a business loses money as a result. Mexican law has a specific route for compensation in those cases, separate from a civil tort claim between private parties, and its features are worth understanding before you use it.
The concept
Responsabilidad patrimonial del Estado is the constitutional obligation of the State to compensate private parties for the damage caused by its irregular administrative activity, without the claimant having to prove that any public servant was at fault.
The basis is the last paragraph of Article 109 of the Federal Constitution, which in our translation reads:
"The liability of the State for the damage that, by reason of its irregular administrative activity, it causes to the property or rights of private parties shall be objective and direct. Private parties shall have the right to compensation under the bases, limits and procedures established by the laws."
Three features of that paragraph define the institution: liability is objective, liability is direct, and the bases, limits and procedures are left to the implementing statutes.
Objective liability
In a civil claim between private parties you generally have to prove that the person who caused the damage acted with intent or negligence. State liability is objective: you do not need to identify the public servant involved or prove that he or she was at fault. What you need to prove is that the administrative activity was irregular, which the federal statute defines as follows (our translation):
"Irregular administrative activity is that which causes damage to the property and rights of private parties who have no legal obligation to bear it, because there is no legal basis or legal justification that legitimizes the damage in question." (Federal Law on State Liability, Article 1, second paragraph.)
The definition separates the burdens that administrative activity lawfully imposes on everyone from damage that has no legal justification. A street closed by a public works project that is properly executed, a traffic restriction, a wait at a government office: these are burdens you are obliged to bear, because there is a legal basis for them. Damage caused by a project that was badly executed has no such basis. It is unlawful damage and it gives rise to the right to compensation. The question is never whether the government caused you an inconvenience. The question is whether there was a rule that legitimized the damage it caused you.
The statute adds a second requirement: the damage must be "unequal to that which may affect the general population" (Article 4). General effects that a deficient project or service causes to a whole community are not compensated individually. Particular, individualized and quantifiable damage to a specific person is. Doctrine calls this the specialty of the damage.
Direct liability
Until 2004 the Federal Civil Code set up a subsidiary regime: the injured party had to sue the responsible public servant first, and the State answered only if that person turned out to be insolvent (Article 1927). That provision has been repealed.
Liability today is direct: the claim is filed against the agency or entity that caused the damage, with no need to sue any individual first. The State keeps the right to recover what it paid from the public servant if a serious administrative offense is established in the corresponding disciplinary proceeding (Article 31 of the federal statute), but that is a relationship between the State and its employee, and the claimant is not part of it.
Where it came from
The institution is relatively recent in Mexican law, which partly explains why it is used less than its scope would justify. For most of the twentieth century, damages against the State went through the subsidiary civil route described above, with limited results.
The constitutional reform published in the Official Gazette on June 14, 2002 introduced objective and direct liability into what was then Article 113. The reform of May 27, 2015 moved the text to Article 109, where it sits today. The 2002 reform gave the Federation, the states and the municipalities a period to pass implementing legislation and required them to budget a line item to pay these compensations.
The Federal Law on State Liability (Ley Federal de Responsabilidad Patrimonial del Estado) was published on December 31, 2004 and entered into force on January 1, 2005. Article 1927 of the Federal Civil Code was repealed on the same date, and the direct administrative route replaced the subsidiary civil one.
One detail that still trips people up: after the constitutional text moved from Article 113 to Article 109 in 2015, the federal statute kept referring to Article 113 for several years. The reform of December 29, 2023 updated its Article 1, which now declares itself the implementing law of the sixth paragraph of Article 109. Citations to the statute that point to Article 113 are to repealed text.
Because the Constitution refers to the bases "established by the laws", each state has its own statute for damage caused by state and municipal authorities. In Jalisco, the Ley de Responsabilidad Patrimonial del Estado de Jalisco y sus Municipios was published on September 11, 2003 and entered into force on January 1, 2004, before the federal law. Damage caused by Jalisco state or municipal authorities is governed by that statute; damage caused by federal authorities, by the federal one. Their principles are the same.
Scope and exclusions
The legislation itself draws the limits of the institution, and it pays to keep them in mind before filing.
It covers administrative activity only. Damage attributable to legislative or judicial activity is governed by separate and considerably narrower regimes.
It excludes damage not attributable to the State. The statute expressly excepts acts of God and force majeure, damage that the state of science and technology did not allow anyone to foresee, and cases where the claimant was the sole cause of his own damage (Article 3).
It has its own procedure. The claim is filed with the agency or entity that caused the damage, it runs on short deadlines and compensation is subject to caps. The third and fourth pieces of this series cover both.
It requires proof. The burden of proving the injury is on the claimant (Article 22); the State bears the burden of proving force majeure or the victim's fault when it raises them. In practice, the viability of a claim depends heavily on the evidence gathered in the days immediately after the damage: photographs, incident reports, documented medical care and, where needed, expert opinions.
Limitation period
The right to claim compensation is time-barred. Under both the federal statute (Article 25) and the Jalisco statute (Article 29) the period is one year, counted from the day after the damage occurred, with special rules for continuing damage and for personal injury. The third piece covers this in detail; for now, the point is that documenting the damage and getting advice early are decisive.
A note for foreign claimants
The constitutional text and both statutes speak of particulares, private parties, without distinction of nationality. A foreign individual or a foreign-owned Mexican company whose property or rights were damaged by irregular administrative activity has the same claim as anyone else. The fifth piece in the series covers the practical differences: representation, documents issued abroad, and how the claim interacts with other remedies.
What the series covers
This first piece explains the concept and origin of State liability. The second looks at irregular administrative activity and the test of damage you have no obligation to bear, with cases the law covers and cases it excludes. The third deals with procedure: competent authority, deadlines and evidence. The fourth, with compensation: calculation, caps and payment. The fifth, with litigation strategy, common mistakes and the particular issues that arise when the claimant is a foreigner.
Legal information, not legal advice. Every case needs its own analysis. Main source: Ley Federal de Responsabilidad Patrimonial del Estado (text in force, last amended DOF 29-12-2023) · Federal Constitution, Article 109 · Ley de Responsabilidad Patrimonial del Estado de Jalisco y sus Municipios. Translations of statutory text are ours. More on the service on our litigation page.