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El daño no patrimonial en el derecho
contractual comparado
Non-property damage in comparative
contract law
Marianna G. De Vita R.
Central University of Venezuela
City:
Caracas
Country:
Venezuela
Original article (miscellaneous)
RFJ, No. 11 (2), 2022, pp. 121 - 175, ISSN 2588-0837
ABSTRACT:
The contribution presented in this paper explores
the trajectories of constitutionalism in its history, which
accompanies the most relevant events of the modern era. The
author has set out to highlight the interrelations of social factors,
the interests of natural and legal persons, the role of states and
of political groups and parties, and ideological anchors, as the
main elements that lead to constitutional texts being placed
in the leading role in the social fabric where they are today.
The most novel expressions of constitutionalism are explored,
among which the definition and recognition of the rights of
nature constitutes one of the most novel and important forms
of its expression.
KEY WORDS:
civil law, law, civil liability, non-pecuniary
damage, contract.
RESUMEN:
La contribución que se presenta en este trabajo
explora las trayectorias del constitucionalismo en su historia,
que acompaña a los acontecimientos más relevantes de la era
moderna. El autor se ha propuesto destacar las interrelaciones
de los factores sociales, los intereses de las personas físicas
DOI 10.26807/rfj.vi11.448
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y jurídicas, el papel de los Estados y de los grupos y partidos
políticos, y los anclajes ideológicos, como los principales
elementos que llevan a que los textos constitucionales se sitúen en
el protagonismo del tejido social en el que se encuentran hoy. Se
exploran las expresiones más novedosas del constitucionalismo,
entre las que la definición y el reconocimiento de los derechos
de la naturaleza constituye una de las formas más novedosas e
importantes de su expresión.
PALABRAS CLAVE:
derecho civil,
derecho, responsabilidad
civil, daño no patrimonial, daño moral, contrato.
JEL CODE:
D23, B25.
INTRODUCTION
Non-pecuniary damage is one of the figures with the
greatest legal development in comparative doctrine and in the
jurisdictional headquarters of European and Latin American
countries. It is defined as an affection, suffering or distress that
affects a person causing pain, grief, or anguish, directly impacting
his or her moral assets (as opposed to pecuniary damage, the
consequence of which entails an economic decrease). This is
why its notion is linked to the theory of non-contractual civil
liability in cases where a wrongful act is materialized, however,
due to the social and economic changes that have emerged in
the community over the years, its conception today is very
different from its primitive origins, For example, we currently
find that in almost all legal systems reparation is allowed in the
form of a monetary sum or that some jurisdictional bodies and
even Civil Codes admit compensation within the framework
of a convention between two or more persons under certain
specific parameters, which until a few years ago was unheard of
in the international legal order.
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As the years go by and societies adapt to new realities,
legislators, judges, and jurists adapt primitive legal concepts to
the emerging circumstances, with a view to achieving material
justice that guarantees peace among citizens, just as it happened
in primitive peoples, the difference lies in the variation of
the applicable judicial forms and remedies, which gives us a
positive trace in the balance of global legal development. There
are various doctrinal discussions on certain theories of law that
have been left in the past, today many of them are not even
referred to, they simply appear in some sources with the sole
objective of enriching the legal study and others are still in
force in the current panorama, but the arguments that sustain
them have lost their validity in the legal field.
Such is the case of the inadmissibility of the reparation of
non-pecuniary damage in the sphere of contractual obligations;
if we analyze the origin of this category of damage, we find its
roots in Roman law, where the use of the terminology
damnum
was excluded in the cases involving non-pecuniary injuries
experienced by a subject, taking special relevance in the sphere
of a private tort of iniuria described in D.47.10.1, as a series
of actions characterized by the willful conduct of a subject
(Cardilli, 2010).
D ’Ors et al. (1975) point out about the definition of
iniuria that:
The name “injuria” comes from the fact that it is done
unjustly, for everything that is done unjustly is said to
be done unjustly. In a more special sense, the offence is
called injuria; sometimes we mean by the word injuria
the injury done culpably, as we are wont to say in regard
to the
Aquilian
Law; at other times, we call injustice
injuria, for, when one has given sentence unjustly or
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unjustly, we say that injuria is suffered by the judge;
and I think it is said injuria because it is without right
or justice, as if we said the opposite of
iuriam
; and the
affront or “contumelia” from
contemnere
or
contemnere
or to despise. (p. 640)
The first references to the obligation to repair an injury
caused to another can be found in the wording of the second
point of Table VIII of the Law of the XII Tables, where it was
established that
if membrum rupsit ni cum eo pacit, talio esto, i.e.,
in the case of a person
causing a fracture of a limb to another
person, the Law of Talion should be applied. The legal right that
was intended to be protected by this regulation was the physical
integrity of the free man, hence the legal assumptions involved
injuries such as
membrum ruptum
or
os fractum
.
Subsequently, through the praetor’s interpretations,
the hypotheses of
iniuria
also began to include those that
harmed the moral personality of others. The notion of iniuria
was extended through the edicts referring to
convictum
or
ademptata pudicitia
, ending with the publication of a general
edict regulating all denigrating acts against another person;
this is how the conception of
iniuria
was extended to include
in general all injuries to the moral or social personality of the
individual (Sánchez, 2012, pp. 338-339).
According to what Ulpianus established in
D.47.10.15.15, for the reparation of damages for
iniuria to
proceed,
animus injuriandi was
required, aimed at hurting,
hitting, beating, insulting, verbally or in writing the offence
to affect the person’s honour or reputation; in which case, the
legal protection was the
Actio Iniuriarum
, a criminal action that
granted the condemned person the taint of infamy. If the facts
giving rise to this legal remedy were serious, the penalty was
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established by the Praetor. In determining the penalty, the way
it was imposed, the context and the personal circumstances
were considered. It could be waived with the
dissimulatio
of the
aggrieved party (D.47.10.11.1) (Del Valle, 2012).
The purpose of the
actio iniuriarum
action was:
To obtain a sentence that, in principle, was proposed by
the plaintiff himself, who had to evaluate the offence
that had been committed against him, although when
the insult was very serious, the appraisal was carried
out by the praetor; subsequently, the judge carried out
the evaluation to impose the sentence, which could
not exceed the estimate made. Moreover, in those
cases in which the assessment of the offence had been
made by the praetor, the judge did not usually reduce
the sentence in view of the magistrate’s authority.
(Guerrero, 2002, pp. 20-21).
Nor does Justinian’s doctrine reflect a notable
antecedent of the compensation of extra-pecuniary damage
as an entity that can be valued in the body of the sentence. It
contains the refinement of the concept of
damnum
, on which
the bases of tort liability would be based, which according
to Cerami (1995), would develop through three ways:
i)
the
marginalisation of the penal character of the tort action,
with the strengthening of its compensatory function;
ii)
the
configuration of the tort action as a general procedural means
to obtain the
damni culpa reparatio
; and,
iii)
the configuration
of fault as a necessary presupposition of liability for damages.
In the Code of the Seven Partidas (drafted in Castile
during the reign of Alfonso X, with the aim of achieving legal
uniformity in the kingdom), with deep-rooted influence of the
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Justinian doctrine, a broad and outlined notion of compensable
damage is established, regulating the damages caused to
patrimonial goods of any nature and the acts that degrade the
physical integrity of a person.
It follows, then, from the wording of the above
provisions, that non-pecuniary damage, since its origins, has
been linked to civil liability arising outside the boundaries
of the contractual sphere; feasible due to the intrinsic
characteristics of this type of injury, since due to its intangibility
and unpredictability it is incompatible with the economic and
predetermined connotation that an agreement entails.
Although various jurists, for example Gayoso Arias
(1918), consider that “no self-respecting man could or should
accept money in exchange for moral pain” (p. 234), considering
that “fame and honour are in a certain sense unethical of
money” (p. 235), the question posed by Chartier (1996) is still
relevant today:
Is it conceivable that today, the highest and noblest
feelings of those around us, of our fellow human beings,
can be affected without any kind of responsibility being
incurred and that, on the other hand, the slightest
damage to our heritage can give rise to reparation?
The answer is clearly No, without specifying the origin
of the relationship between the persons involved.
Some countries such as France, Italy, the United
Kingdom, the United States, among others, have overcome the
arguments that for years have prevented the reparation of non-
pecuniary damage in the contractual sphere, assessing specific
cases that have reached the heart of their courts, in which they
have decided in favour of the victim, thus rescuing the role of
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the jurist as a cultivator of justice and honoring Celsus’ ancient
definition of law understood as
l’ars boni et aequi
, professing
the knowledge of the good and the equitable, separating the just
from the unjust, discerning between the lawful and the unlawful,
desiring to do good, not only for fear of being punished, but
also with the exhortation of rewards. In this sense, we will now
analyse the development of this thesis in recent years in the
light of comparative law.
1. NON-PECUNIARY DAMAGE IN COMPARATIVE
CONTRACT LAW
The claim for contractual non-pecuniary damage has
had several stages in the development of its consolidation in the
domestic laws of the countries based on the
common
and
civil
law
systems. The first of them unfolds, approximately until the
middle of the 20th century, in which there was a forceful and
unanimous rejection of this indemnifying condition justified
in the natural exclusion based on the patrimonial nature of
the contract. The second is circumscribed to the acceptance
of this claim in certain conventional categories involving
legal weaklings whom the system should protect (workers,
consumers, among others), and the third is characterized by
the establishment of jurisprudential criteria (source of law),
in which mechanisms are created, such as the “cumulative
liability”, through the concrete analysis of particular cases in
which compensation for non-pecuniary damage is approved in
favour of the creditor, as a consequence of the non-performance
of a contractual performance.
Thus, international organizations, whose aim is the
harmonization of private law, have developed certain works
containing principles that include precepts applicable to civil
law, with a view to the evolution and legal innovation of this
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branch. The admissibility of the claim of this category of damage
in a convention has not escaped this debate, considering that the
legal systems present important differences in their treatment.
One of the most significant initiatives in this area is that of the
Contract Law Commission, which published the Principles of
European Contract Law (PECL), integrated in the
Common
Frame of Reference
(CFR) of the
Study Group on a European
Civil Code
and the
Acquis Group. European Research Group on
Existing EC Private Law
1
.
Chapter 9 of the PECL on
remedies for non-performance
contemplates, in its section 5 entitled
damages and interest
,
Article 9:501 (
right to damages
), which recognizes the possibility
of compensating non-pecuniary damage caused by a breach of
contract. In this sense, it states: (1) The aggrieved party is entitled
to damages for loss caused by the other party’s non-performance
which is not excused under Article 8:108. (2) The loss for which
damages are recoverable includes: (a) non-pecuniary loss; and
(b) future loss which is reasonably likely to occur.
Article 3:701 (
right to damages
) of the CFR sets out
this same criterion, with the additional precision of including
within non-economic damages, suffering and impairment of
quality of life, providing as follows: (1) The creditor is entitled
to damages for loss caused by the debtor’s nonperformance
of an obligation, unless the non-performance is excused. (2)
The loss for which damages are recoverable includes future
loss which is reasonably likely to occur. (3) “Loss” includes
economic and non-economic loss. “Economic loss” includes
loss of income or profit, burdens incurred and a reduction in
the value of property. “Non-economic loss” includes pain and
suffering and impairment of the quality of life.
1
Official website:
https:
//ec.europa.eu/info/departments/justice-and-con
-
sumers_en
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Likewise,
the
International Institute for the Unification
of Private Law (known by the acronym UNIDROIT, by its French
name:
Institut international pour l’unification du droit privé
), in
the
paper
referring to the
Principles of International Commercial
Contracts
, last published in 2016, expresses in the text of its
article 7.4.2 (full compensation) that: (1) The aggrieved party is
entitled to full compensation for harm sustained because of the
non-performance. Such harm includes both any loss which it
suffered and any gain of which it was deprived, considering any
gain to the aggrieved party resulting from its avoidance of cost
or harm. (2) Such harm may be non-pecuniary and includes,
for instance, physical suffering or emotional distress.
Therefore, the first paragraph includes the right of the
aggrieved party to full compensation for damage suffered as a
consequence of a breach of contract, and the second paragraph
includes compensation for non-pecuniary damages, which,
according to the comments published in its content, can mean
pain and suffering, loss of certain comforts of life, aesthetic
prejudice, etc., as well as those arising from attacks on honour
or reputation, and compensation can take different forms of
reparation, and it is up to the Court to decide which of them
ensures adequate compensation.
Contrary to these precepts, the United Nations
Convention on Contracts for the International Sale of Goods
(signed in Vienna on 11 April 1980), rejects the compensation
of any kind of non-pecuniary damage for the non-performance
of an obligation prescribed in an agreement; Thus, Article 74
states that “damages for breach of contract incurred by one
party shall include the value of the loss suffered and the value
of the profit lost by the other party as a result of the breach”, so
that it only refers to pecuniary damages, without any mention
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of the non-pecuniary category. In this case it sounds logical due
to the commercial nature of the object of the contract that is
regulated in said convention, however if as a consequence of
the non-performance of an obligation expressed in a written
agreement, it violates a fundamental right, it would matter little
the commercial essence of the sale of goods, in any case it would
be in the sphere of the contractual non-pecuniary damage
that can be compensated, in accordance with the treaties and
constitutions mentioned
above.
In European Community law, in accordance with
the jurisprudential criteria that some local courts have been
adopting in recent times, several legislative initiatives have
been enacted that expressly recognise this thesis, such as,
firstly, Council Directive 90/314/EEC of 13 June 1990, refers
to the non-performance of package travel contracts (repealed
by Directive 2015/2302 of the European Parliament and of the
Council of 25 November 2015) and states that compensation
for injury must cover non-material damages, in particular for
loss of enjoyment of the trip caused by substantial problems in
the performance of the services agreed.
Secondly, Directive 2000/78/EC of the European
Council (27 November 2000) establishing a general framework
for equal treatment in employment, and Directive 2002/73/EC
of the European Parliament and of the Council (23 September
2002) on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational
training and promotion, and on equal opportunities for men
and women in the labour market. 2002/73/EC of the European
Parliament and of the Council (23 September 2002) on the
implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training
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and promotion, and working conditions, provide that Member
States shall introduce into their national law such measures
as are necessary to ensure real and effective remedies for
disadvantages suffered by a person as a result of discrimination
(Articles 17 and 6.2 respectively). Similarly, Council Directive
2000/43/EC (29 June 2000) on the principle of equal treatment
between persons irrespective of racial or ethnic origin provides
for the admissibility of effective redress for discrimination,
being effective if the compensation includes the non-material
damage caused to the person discriminated against.
Latin America, for its part, has not organised its states
with a view to building a community with solid institutions
whose legal guidelines have an impact on the domestic law of
each country, despite the fact that this mission represented
an important goal within the values of the 19th century
independence movements identified in projects such as Gran
Colombia (1819-1831), the Mexican Empire (1821-1823), the
United Provinces of Central America (1823-1824), the Federal
Republic of Central America (1824-1839) and the Peruvian-
Bolivian Confederation (1836-1839).
Their attempts at integration have been basically
limited to the regional economic and political sphere, creating
entities such as the Latin American Free Trade Association
(LAFTA), the Latin American Integration Association (LAIA)
or the Latin American and Caribbean Economic System
(SELA), and intergovernmental organisations such as the
Andean Community of Nations (CAN) and the Southern
Common Market (MERCOSUR),
the
Bolivarian Alliance for the
Peoples of Our America
(ALBA), the
Union of South American
Nations
(UNASUR) and the
Community of Latin American and
Caribbean States
(CELAC), most of which aim to impart a legal
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regime based on the common economic and social realities of
the Latin American territory.
From the point of view of the integration of law, the
most transcendental is the Organisation of American States
(OAS) created on 30 April 1948, with the aim of
achieving in its
Member States an order of peace and justice, promoting their
solidarity, strengthening their collaboration and defending their
sovereignty, territorial integrity and independence (Article 1 of
the OAS Charter); However, in contractual matters there is no
treaty regulating the reparation of non-pecuniary damage, the
closest legal link to this thesis is the obligation that it imparts to
the States in the protection of fundamental rights set out in the
aforementioned Pact of San José, Costa Rica.
It is important to mention that in recent times, it has
been recognised that Latin American law integrates a legal sub-
system that has its own unitary elements, whose socio-cultural
base has been identified in the Roman-Ibero-Indigenous block,
receiving its legal form from Roman law. These common features
stand out in the social-democracy based on the real equality
between people and the universalism of its law; in fact jurists of
great prestige in the internal order of their countries have come
together to create various harmonisation projects that qualify
the principles of Latin American law, such is the case of the
Group for the Harmonisation of Law in Latin America (GADAL)
(2021) whose objective is the drafting of a Framework Code of
Obligations with the purpose of elaborating a general theory in
Latin America, whose purpose is circumscribed to:
Respond to the demands of renovation, integration
and reorganisation of Latin American private law or,
in general, to the need for legal security in harmony
with the principles and values that guide the Latin
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American legal sub-system, especially the protection
of the human person, respect for fundamental rights,
equality, justice and good faith. (p. 3).
In the manifesto of this Latin American Harmonisation
Group GADAL (2021):
On a large scale, the legal systems of the Latin
countries share:
i)
the tutelage and protection of
fundamental rights and human rights (as we have
expressed in the preceding pages) through their
Constitutions and the signing of international treaties;
ii)
the supremacy of their Constitution protected by
ordinary and extraordinary mechanisms with the aim
of guaranteeing respect for the Magna Carta;
iii)
the
updating of substantive regulations, by doctrine or
jurisprudence in response to the resolution of problems
specific to the region;
iv)
the enactment of special laws
regulating private law matters with legal solutions
different from those established in the Civil Code;
v)
the
establishment of an equal legal system between persons
linked in a relationship in which they are objectively
in an unequal situation;
vi)
the local interpretation of
legal concepts and rules, taking into account the legal
tradition of each Latin country;
vii) the
implementation
of comprehensive regional regulatory frameworks with
a view to local socio-economic development. (p. 2)
Initiatives such as these have had a forum within the
Universities, within a purely academic sphere. In the case of this
Group, it can be affirmed that the drafting of the Framework
Code of Obligations is the first of them that aims to form an
instrument of consultative reference for Latin American
doctrine and jurisprudence; however, it is a project that has not
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yet been published in its entirety, so that the admissibility of
the claim for non-pecuniary damage in the contractual sphere
could not be taken as a reference in the thesis.
The
common denominator between the legal systems
of different nations, either because it is established by
legislation or by jurisdictional criteria, is centred on a variety
of solutions regarding the recognition of the appropriateness of
compensation for non-pecuniary damage as a remedy for the
non-performance of an agreement entered into between two
or more persons, a determining factor being the qualification
of the damage that is admitted and the requirements for its
estimation. Undoubtedly, the tendency has been to rule out
any claim containing this type of claim, although more and
more frequently, the Judges have considered that the economic
nature of an agreement does not prevent the compensation of
non-pecuniary damages.
1.1. United Kingdom
Initially, the UK case law was very decisive in its criteria,
stating that the nature of non-pecuniary injuries was incompatible
with the economic nature of the contract. However, over the
years, it has become more flexible in its position by carrying out
exhaustive analyses in some particular cases and by pointing out
some exceptions to the traditional rule.
One of the case law precedents used by the English
courts to deny the possibility of compensation for non-
pecuniary damage in the contract is established in the
House
of Lords
Judgment on the case of
Addis vs Gramophone Co. Ltd.
(1909), in which an employee (
Mr. Addis
) claimed damages for
non-pecuniary loss caused by his wrongful dismissal.
Mr. Addis
was the manager of
Gramophone Co. Ltd
in the city of Calcutta.
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In October 1905 he was given 6 months’ notice of dismissal as
required by law and a successor was appointed to his position,
and the company took steps to prevent
Mr Addis
from acting as
manager during his notice period, which resulted in his return
to England 2 months after the notice of termination.
In the judgment,
Lord Loreburn
held that in the
case of dismissal without notice, the employer must pay
compensation, taking into account that the compensation is
reduced to the period of notice omitted and cannot in any way
include compensation for hurt feelings, nor for the loss he
has faced in being dismissed, which makes it more difficult to
obtain a new job.
Lord Shaw of Dunfermline
(1909) stated that
compensation for intangible damages could not be considered
in this case, as it fell within the prohibited grounds of the law,
stating the following:
There remains, however, my Lords, a class of cases
in which the injury accompanying the dismissal
arises from causes less tangible, but still very real,
circumstances involving harshness, oppression, and an
accompaniment of obloquy. In these cases, unhappily,
the limitations of the legal instrument do appear;
these cases would not afford separate grounds of action
because they are not cognizable by law. The very instance
before your Lordships’ House may afford an illustration.
Here a successor to the plaintiff in a responsible post in
India was appointed in this country, without previous
notice given by the defendants; the successor enters
the business premises to take, by their authority, out of
the hands of the plaintiff those duties with which the
defendants have by contract charged him, and he does so
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almost simultaneously with the notice of the defendants
bringing the contract to a sudden termination; while,
even before this notice reached his hands, the defendants’
Indian bankers had been informed of the termination of
the plaintiff’s connection with and rights as representing
their firm. Undeniably all this was a sharp and oppressive
proceeding, importing in the commercial community of
Calcutta possible obloquy and permanent loss. Yet, apart
from the wrongful dismissal, and on the hypothesis that
the defendants are to be held liable in the full amount
of all the emoluments and allowances which would
have been earned by the plaintiff but for the breach of
contract, there seems nothing in these circumstances,
singly or together, which would be recognized by the law
as a separate ground of action. If there should be, it will,
on the principle I have referred to, remain; but if there
be not, I cannot see why acts otherwise non-actionable
should become actionable or relevant as an aggravation
of a breach of contract which, ex hypothesi, is already
fully compensated. (s. p.)
After using the previous judgement as an argument
to deny compensation for contractual non-pecuniary damage,
the Courts themselves change their criteria and show that
contracts are not always commercial in nature, since not
in all cases their content is necessarily linked to economic
interests. Thus, another precedent was set in the 50’s with
the case of
Bailey v. Bullock
, in which a married couple sought
damages due to the malpractice of their lawyer, who did
not exercise the appropriate procedural actions to recover
possession of a home in the possession of a third party, so
that they were forced to reside for two years in the home of
the wife’s family, exposed to an
overcrowded home
. Damages
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for inconvenience suffered were awarded, differentiating
between
damages for inconvenience
and
damages for distress
,
with the judgement emphasising that there is a distinction
between the inconvenience or disappointment caused by the
debtor’s breach of its contractual obligation and the actual
physical discomfort and discomfort caused by such breach.
In the same terms, in 1991, the case of
Watts vs
Morrow
2
was decided, concerning a dispute arising from the
falsity of the information contained in an expert report ordered
by the plaintiffs, which indicated the habitability of a house
they intended to purchase in a rural area for holiday purposes.
Relying on the provisions of the document in question, they
proceeded with the purchase of the property, only to discover
later that the report was erroneous and that the house was in
urgent need of renovation.
With regard to non-pecuniary damage, it is stated
that the breach of a contractual obligation does not generally
lead to anguish, frustration, anxiety, disgust, anger, tension or
aggravation for the affected party, due to the unforeseeable
nature of these reactions, but in cases where the purpose of
the contract is to provide pleasure, relaxation or peace of mind,
damages may be recognised if the result is different from the
one actually obtained, without this involving a financial nature.
Another of the judgments in which the Courts follow
this line of argument is the case known as
Farley v. Skinner
,
which arose from a dispute arising from the falsity of an expert
report on the measurement of the noise produced by planes
landing at
Gatwick
airport, in a country house that the claimant
2
In the same vein, other judgments also compensate moral damage result
-
ing from living in unhealthy premises (Patel v. Hooper & Jackson 1999), or
from the impossibility of inhabiting a dwelling affected by serious defects
(Holder v. Contryside Surveyors, 2003).
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intended to buy, which was located close to the airport. Trusting
the veracity of the information provided by the expert, he
proceeded with the purchase and occupation of the house,
when he became aware of the nuisance and inconvenience,
especially during the hours of air traffic. The
House of Lords
determined that the risk of the existence of aircraft noise was a
determining factor for the peaceful enjoyment of the property,
in this sense, the falsity of the information presented by the
expert generated damages due to the impossibility of obtaining
this enjoyment.
A clearer example of this can be seen in cases of breach
of package travel contracts, the purpose of which is to provide
the obligee with welfare, rest or pleasure. In
Jarvis v. Swan’s
Tours
, a dispute arose out of a package travel contract, which
included a two-week stay at a hotel during the ski season, as
well as a range of activities for hotel guests and ski equipment.
When the claimant and his family went there to receive the
services of the contracted package, they noticed that they fell
far short of what had been promised, for which he requested
compensation for pecuniary and non-pecuniary damages for
disappointment, distress, displeasure and frustration.
In this regard, the
Lord Justice
,
Edmund Davies
(1972)
points out:
When a man has paid for and properly expects an
invigorating and amusing holiday and, through no fault
of his, returns home dejected because his expectations
have been largely unfulfilled, in my judgment it would
be quite wrong to say that his disappointment must
find no reflection in the damages to be awarded. And
it is right to add that, in the course of his helpful
submissions, Mr. Thompson did not go so far as to
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submit anything of the kind. Judge Alan Pugh took that
view in Feldman v. Allways Travel Services, noted in
1957 Current Law Year at paragraph 934. The highly
experienced senior County Court Judge there held that
the correct measure of damages was the difference
between the price paid and the value of the holiday
in fact furnished, “taking into account the plaintiff’s
feelings of annoyance and frustration. (s. p.)
For its part, the well-known
Law Commission
, an
independent statutory body set up by the Law Commissions
Act 1965 to keep under review the law of England and Wales
and to recommend reforms where necessary, in its
paper
entitled
Damages for Personal Injury: non-pecuniary loss
, lists
as arguments against the recognition of non-pecuniary loss:
(i)
the offensive nature of monetary compensation for this type
of damage,
(ii)
the fact that no amount can be adequate to
compensate for personal injury,
(iii)
the cost of compensation
for non-pecuniary loss,
(iv)
that there is a punitive element
in the recognition of non-pecuniary loss; and,
(v)
that these
damages constitute a barrier to recovery.
It also points out that if a functional approach is taken
to non-pecuniary injuries, they would have to be analysed in
terms of the cost of replacing the benefit, so that only economic
damages could be compensated; however, the Commission
itself eventually recognised the need to assess this category,
concluding that the vast majority of victims thought that
they should be admitted and opted to recommend that their
recognition should be retained in the area of civil liability.
From the above, it can be seen that the general rule
in the British legal system is not to admit the claim for non-
pecuniary damage for breach of contract, taking into account
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that the commercial nature of the contractual relationship
means that the psychological suffering produced by the non-
performance of an obligation within the framework of this
pre-existing relationship is considered part of the risk assumed
by the contracting parties, excluding from this rule, by way of
case law, the following agreements (with the terms of these
exceptions being progressively broadened in recent years):
(i)
contracts whose non-performance causes bodily injury
or produces
physical inconveniences
to the obligee (
Hobbs v.
L. & S.W. Railway Co.
;
Watts v. Morrow
;
Farley v. Skinner
);
ii)
contracts whose purpose is to provide the obligee with well-
being, rest, pleasure, or to avoid certain inconveniences (
Jarvis
v. Swan’s Tours
), delimited by the doctrine
(Mckendrick and
Worthington, 2005)
in two cases:
i
)
when the purpose of the
contract is an immaterial benefit and this is not satisfied; and,
ii)
when there is a breach of a consumer contract.
1.2. United States of America
The American
common law
recognises as non-pecuniary
damage those damages that arise as a consequence of a wound,
injury or observable harm, known as
parasitic damages
, which
in turn are divided into two categories
i)
non-pecuniary damage
as parasitic damage, originating from a physical wound or injury
caused to a person, which includes
pain and suffering
,
emotional
distress
, fear, anxiety and other emotions experienced by the
victim due to an act that violates a legally recognised interest;
and,
ii)
non-pecuniary damage as a basis for an independent
action; a precept initially rejected by the Courts, until 1823, when
the
United States Circuit Court for the District of Massachusetts
,
in
Chamberlain vs. Chandle r
(suit brought against the captain
of the ship Pearl for engaging in vulgar and disrespectful
conduct towards the plaintiff passengers), allowed a claim for
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non-pecuniary damages for mistreatment and injury to a family
during a voyage from
Woakoo
Island to Boston (Kircher, 2007).
The common law of North America initially denied
protection for certain non-pecuniary damages of a personal
nature, on the grounds that these were not considered to
constitute a legally protected interest. This premise has been
modified over time, and nowadays a recurring criterion in
the courts of the United States is the admission of claims
for emotional damages when they have been inflicted. This
development has arisen after the filing of a series of lawsuits in
which the Judges relaxed their previous reasoning, as a result of
the obviousness of some circumstances, for example:
i) Edward W. B. Canning v. The Inhabitants of
Williamstown
(1848) in which the
Massachusetts Supreme
Judicial Court
found in favour of the plaintiff, ordering the
Town to pay compensation for an emotional injury suffered as
a result of a defect in a bridge in the town of
Williamstown
. The
plaintiff fell 15 feet onto rocks and stones in the creek after the
bridge gave way while he was crossing with his carriage, causing
injuries to his cheek, leg and other parts of his body. He applied
to the Court for compensation for the great terror and mental
suffering he experienced as his life was in grave danger, with
the jury to assess the physical and mental damages, taking into
account his anguish, as well as the risk and danger involved.
(ii)
J
. H. Hill et al. v. H. H. Kimball
(1890) before the
Supreme Court of Texas
, in which a married couple brought
an action for damages against their landlord for breaking and
entering their rented home.
Mrs. Hill was in a remarkably
advanced state of pregnancy, so that any undue exaltation
could cause irreparable damage to her health. In full knowledge
of this, the defendant arrived at the plaintiffs’ home and
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assaulted, in the presence of the plaintiff, two black people
in a boisterous and violent manner, accompanying his attack
with profane language, even causing blood to be drawn. As a
result, the mother-to-be was frightened, which caused labour
pains, leading to a subsequent miscarriage, seriously damaging
her health. The Court, despite finding no precedent for such an
action, awarded compensation for non-material damages.
(iii) Engle v. Simmons
(1906) decided by the
Alabama
Supreme Court in a
suit brought by
Damages for Personal Injury
from Wrongful Act
against Mr.
Simmons
, who violently entered
the home of
Mary P. Engle
, a married and pregnant woman,
in the absence of her husband, causing her personal injuries
inflicted without physical violence. Despite asking her to leave
the house, he expressly refused to do so, proposing to take an
inventory of the property, threatening what he would do with
it in return for the debt he owed to the plaintiff’s husband. This
situation caused the woman distress, leading to the premature
birth of her unborn child. The Court ordered the defendant to
pay compensation to the victim by virtue of her right to the
peaceful enjoyment of her residence, so that any invasion of her
residence generates an obligation to compensate her.
US law also establishes as a general rule the
inadmissibility of non-pecuniary damage in the contractual
sphere. The rationale has mainly been the unforeseeability of
non-pecuniary damage at the time of the conclusion of the
convention. The Courts have pointed out that frustration or
displeasure caused by the non-performance of an obligation are
common feelings in any contractual relationship and are part of
the risk assumed by the parties.
This criterion is accepted by both doctrine and
jurisprudence. On 3 April 1980, the
Court of Appeals of
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California
, in the case
Allen v. Jones
3
, established that damages
for breach of contract correspond to those arising from the
non-performance of an obligation within the framework
of a convention or those foreseen by the parties, being
necessary, in most agreements, the negotiation of commercial
transactions, in which a feeling of distress or frustration,
which allows differentiating it from an agitation or annoyance,
is not foreseeable for any of the parties involved.
The foreseeability of damage, as an indispensable
requirement for its compensation, is regulated in section 351 of
the
Restatement (Second) of Contracts
4
entitled
Unforeseeability
and Related Limitations on Damages
, where it is expressly stated
that:
(1) Damages are not recoverable for loss that the party in
breach did not have reason to foresee as a probable result of the
breach when the contract was made. (2) Loss may be foreseeable
as a probable result of a breach because it follows from the breach
(a) in the ordinary course of events, or (b) as a result of special
circumstances, beyond the ordinary course of events, that the party
in breach had reason to know. (3) A court may limit damages
for foreseeable loss by excluding recovery for loss of profits, by
allowing recovery only for loss incurred in reliance, or otherwise if
it concludes that in the circumstances justice so requires in order
to avoid disproportionate compensation
, i.e. it remains a general
rule that damages are not recoverable where the obligor could
not foresee them as a result of its breach at the time of the
conclusion of the contract.
3
In the present case Carl Allen sues Nicholas Jones for
damages for mental
distress
he suffered when he learned that the cremated remains of his
brother, which the defendants had promised to ship to Illinois, were lost in
transit, the empty box arriving at its final destination, and his whereabouts
were unknown.
4
It is a legal treatise in the second series of the
Restatements of the Law
,
recognised and frequently cited by American courts and intended to inform
judges and lawyers of the general principles of common law of contract.
It is considered a non-binding source used in the areas of contracts and
commercial transactions.
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This precept is not absolute, since section 353 (
Loss Due
to Emotional Disturbance
) of the same instrument provides two
exceptions:
recovery for emotional disturbance will be excluded
unless the breach also caused bodily harm or the contract or the
breach is of such a kind that serious emotional disturbance was a
particularly likely result
, so that compensation for frustration and
emotional disturbance caused by breach of contract is admitted
when:
i)
the breach has caused bodily harm or
ii) it
is of such a
kind as to cause serious emotional disturbance.
In accordance with this line of argument, the American
courts have admitted these two alterations to the rule and have
declared the admissibility of non-pecuniary damage within the
contractual framework in some particular cases:
i) Stewart v.
Rudner
of the
Supreme Court of Michigan,
relating to the result
of a badly performed caesarean section, where the admissibility
of non-pecuniary damage is concluded, due to the evident
mental anguish and suffering experienced by the plaintiff; and,
ii) Hill v. Sereneck
of the
Court of Civil Appeals of Alabama
,
concerning the breach of a contract for the construction of a
house, concluding that, in cases in which it is demonstrated that
the non-performance of the contract causes mental anguish or
suffering, resulting in emotional or mental damages, these are
compensable.
It is worth noting that case law has also admitted the
action for compensation for non-pecuniary damage in contracts
for funeral services, construction of housing, medical services
or package travel contracts, flight delays leading to the loss of
holidays, service contracts subject to an essential term, among
others; all have in common that their purpose includes satisfying
non-pecuniary interests, whose injury produces the typical
frustration, annoyance, discomfort or emotional discomfort to
the creditor, which in these cases would be totally foreseeable.
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With regard to the applicable regime in the United
States of America, we can conclude that despite the existence
of a general rule of not recognising the applicability of the
action for non-pecuniary damage in the conventions, various
exceptions have been granted in jurisdictional venues, as well
as in non-binding rules that serve as a guide for judges and
jurists, which allow, under specific conditions, the claim for
this category of damages, either because they are understood
as contractual damages or because they are delimited within
the system of
torts
, taking into account that the typology of
the contract is fundamental for the judges to decide whether a
compensation of this category could be admitted or not.
1.3. France
The French legal system has developed favourable
theses, especially at the jurisprudential level, on the admission
of compensation for emotional damage in the contractual
framework. French jurists have been one of the most
prominent, in the comparative law of the nineteenth century,
for being pioneers in this matter within the
civil law
system,
not only because their code has served as a basis for legislators
who are responsible for drafting substantive rules within their
countries, but also because their doctrine has influenced the
innovation of modern law.
The French
Civil Code
establishes the general principle
of performance of obligations in Article 1147, stating that
the
debtor is condemned, if necessary, to pay damages and interests
either because of the non-fulfilment of the obligation, or because of
the delay in fulfilment, whenever the non-fulfilment is not justified
by a foreign cause which does not justify the non-fulfilment of
the obligation, soit à raison du retard dans l’exécution, toutes les
fois qu’il ne justifie pas que l’inexécution provient d’une cause
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étrangère
qui ne peut lui
être
imputée, encore qu’il n’y ait aucune
mauvaise foi de sa part
. In the same sense, Article 1150 states: le
débiteur n’est tenu que des dommages et intérêts qui ont
été
prévus
ou qu’on a pu prévoir lors du contrat, lorsque ce n’est n’est point
par son dol que l’obligation n’est point exécutée
.
The wording of both contemplates the principle of
contractual civil liability, according to which the obligor will
be condemned to pay damages when it does not fulfil the
obligations stipulated in a convention or when the performance
is late, unless it can be justified through a non-imputable
extraneous cause, limiting the compensation of the damage to
the existence of the requirement of foreseeability at the time of
the conclusion of the contract, with the exception of cases of
bad faith, in which case the provisions of Article 1151 apply, i.e.
dans le cas même où l’inexécution de la convention résulte du dol du
débiteur, les dommages et intérêts ne doivent comprendre à l’égard
de la perte
éprouvée
par le créancier et du gain dont il a
été
privé,
que ce qui est une suite immédiate et directe de l’inexécution de
la convention
; therefore, the losses suffered by the creditor will
be included, as well as the gains of which he would have been
deprived (loss of profit), as a consequence of the immediate
and direct non-performance of the agreement.
The position of the doctrine regarding the recognition
of contractual non-pecuniary damage has been very firm due to
the absence of exhaustive limits established in the substantive
rule. The admission of this category is justified by the
principle
of integral reparation
,
regulated by article 1147 and following
articles of the
Code
, so that the damage caused to the victim
must be compensated independently of its nature. The non-
performance of a performance pre-established in an agreement
implies in itself a loss for the creditor, as the debtor is obliged to
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repair such damage, regardless of its economic nature or not, it
is sufficient that it has occurred.
Planiol and Ripert (1935), in their
Traité pratique de
droit civil français
, state that non-material damage must be taken
into account in the same way as material damage, whether the
civil liability arises from a contract or from the commission of
a wrongful act, thus stating:
The creditor can only obtain compensation if he proves
that the non-execution or the delay in the execution of
the obligation caused him a damage. Sans cela de quoi se
plaindrait-il? Sans intérêt, pas d’action. C’est pour cette
raison que l’art.
1147 dit que “le débiteur est condamné,
s’il y a lieu...”.
Il se peut, en effet, que l’exécution réelle
n’eût procuré aucun avantage au créancier. On cites as an
example the case of the grocer who omitted to produce in an
order, as he had been ordered to do by his client, alors qu’il
n’aurait pas obtenu du notaire qui a omis de faire inscrire
l’hypothéque de son client el peut
établir
que l’hypothéque
non inscrite
était
primée par d’autres qui absorbaient la
totalité du Prix de l’immeuble, de sorte que son client,
même inscrit, n’eût rien obtenu du tout. Quant au simple
retard, il arrive très souvent que le créancier n’en
éprouve
aucun dommage appréciable. If this damage exists, and
it depends on the circumstances, reparation is due to the
grower.
Le dommage moral est à prendre en considération
au même titre que le dommage matériel, quelle que soit la
nature de la responsabilité.
(p. 158)
One can appreciate the evolution, over time, in the
decisions of French judges, which have as their object the
resolution of disputes leading to the reparation of damages
caused to a person. The openness given to the interpretation
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of the
principe de réparation intégrale
provided for in the
Code
has been
present in its jurisprudence in a firm and unanimous
manner. The first cases arose in the context of so-called
accidents at work, from the industrial revolution onwards, but
even today the court continues to affirm that
it is a principle
that every victim of an injury, whatever its nature, has the right
to obtain compensation from the person who caused it
(Motifs de
l’arrêt, 2012).
The broad interpretation of the full reparation of damage
does not entail the unlimited opening of the compensation of
non-pecuniary damage in a contract, since its uncontrolled
application can give rise to jurisprudential precedents
far removed from justice, even opening the possibility of
generating abuses, especially because the majority of the legal
world agrees with the purpose of the monetisation of such a
subjective damage as moral damage (indirect compensation),
since its intrinsic value cannot be questioned for any reason.
This is where the judge’s criterion plays an important role. The
wording of the
Code
, as shown
above
, is a generalised text, and
it is therefore the responsibility of the courts to determine
whether this category of damages is appropriate in each
specific case, for example, whenever the breach of an obligation
relates to an object that has moral value, or when it violates
the religious feelings of an individual, or when the breach of
the contractual relationship affects the reputation of one of the
parties, or when it results in indirect dismissal, among others.
For its part, as in the United Kingdom and the United
States of America, French case law has considered that non-
pecuniary damages are inherent to the breach of contract that
prevents the enjoyment of the holiday, in the same way as
in the United Kingdom and the United States of America, in
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agreements for the purpose of contracting package holidays or
holidays. One of the most important rulings on the matter was
issued by the
Cour de Cassation
on 4 November 1992, where
this criterion
was established, despite the
fact that the
Arrêté du
14 juin 1982 relatif aux conditions générales de vente régissant les
rapports entre les agences de voyages et leur clientèle
indicates in
its article 9 that only material damages are applicable.
1.4. Italy
The
compensation of non-pecuniary damage
in Italy
is regulated for the first time in the text of the
Civil Code
of
1942, in which, according to
Article 2059,
non-pecuniary
damage must be compensated only in the cases determined by
law.
This provision represented, at the time, the updating of
Italian civil law, in line with what was already being developed
in comparative law. Italian society was not the same as in 1865
(date of promulgation of the previous
Codice Civile
), the reality
went beyond the legal structure in force at the time, it was
necessary to guarantee a broad protection of the non-economic
interests of the citizens, however there was a notable distrust of
the legislator, which resulted in the normative restriction of the
reparation of this category of damage (Salvadori, 1979, p. 258).
Once the
Codice
was published, and with the
presentation of some controversies before the local courts,
two contradictory interpretative currents arose in case law
and doctrine. The first one related to the identification of
non-pecuniary damages only under the concept of “subjective
moral damage” (or
pretium doloris
, understood as the transitory
psychic suffering produced as a consequence of an injury
suffered, with special exclusion of injuries to the integrity and
health of a person considered as material damages) (Franzoni,
1995; Thiane, 2002), leaving out the protection of other types
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of harm to the person, and the second corresponding to the
interpretation of the clause “
casi determinati dalla legge
” and the
feasibility of extending its application to other areas that are not
limited to offences punished by criminal law (Scognamiglio,
1957), as indicated in Article 185 (
restituzioni e risarcimento
del danno
) of the
Codice Penale
, according to which
ogni reato,
che abbia cagionato un danno patrimoniale o non patrimoniale,
obbliga al risarcimento il colpevole e le persone che, a norma delle
leggi civili, debbono rispondere per il fatto di lui.
With the restricted interpretation of the current body
of law, an important category of interests that were emerging
in society were excluded, which did not correspond to the
criminal nature of the preceding provisions, nor could they
be framed within the content of article 2043 of the
Codice
Civile
(
qualunque fatto doloso o colposo che cagiona ad altri un
danno ingiusto, obbliga colui che ha commesso il fatto a risarcire
il danno
), but which necessarily needed to be protected in the
Italian legal system.
Thus, in favour of the prevalence of the values of
the person and of the thesis that the traditional imposition
of the inappropriateness of the inappropriateness of the
compensability of injuries to fundamental rights is inadequate,
the doctrine and the courts began to consider the insertion of
factual assumptions that the legislator, through various bodies
of law, recognises as feasible for the claim of non-pecuniary
damage, which in some cases could even be interpreted in an
analogical manner (Astone, 2012).
This tendency began to gain strength after the historic
sentence of the
Corte Costituzionale No. 184 of 14 July 1986
,
which affirmed the compensability of biological damage,
without taking into account the negative economic effects. For
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the judge, the aforementioned article 2043 must be clarified in
accordance with the provisions of article 2 of the
Constitution
, in
the light of the extensive interpretation based on the evolution
of the right to compensate not only pecuniary damages in the
strict sense, but also all those that hinder the activity of the
human person and therefore, in an autonomous manner, and
without any limits, biological damage. From this point onwards,
emotional damage is no longer limited exclusively to moral
damage, as it includes biological damage, understood as the
injury to the psychophysical integrity of the individual as such,
considered acceptable on a medico-legal level, which can be
defined as the damage caused to non-economic interests of
social relevance, among which are the fundamental rights of
the subjects.
In the chapter entitled
“Considered in law”
, the Court
(1976) analyses the change in the terminology of “moral
damage” with that of “non-pecuniary damage”, revealing that
such reasons are unequivocally clarified by the same ministerial
report to the definitive draft of the criminal code of 1930,
where reference is made, above all, alla scelta operata in sede
di risarcimento di danni morali (“Il carattere generale di tale
principio, incompatibile con una enunciazione di casi tassativi
di applicabilità, mi ha indotto a non limitare la risarcibilità del
danno morale a casi particolari, come taluno aveva suggerito”) e si
offre, successivamente, la ragione della nuova locuzione usata per
indicare il danno morale subiettivo: “Quanto alla designazione del
concetto, ho creduto che la locuzione “danno non patrimoniale” sia
preferibile a quella di “danno morale”, tenuto conto che spesso nella
terminologia corrente la locuzione di “danno morale” ha un valore
equivoco e non riesce a differenziare il danno morale puro da quei
danni che, sebbene abbiano radice in offese alla personalità morale,
direttamente o indirettamente menomano il patrimonio”
.
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Another important aspect is the definition of biological
damage and its difference with subjective non-pecuniary
damage. Thus, it is indicated that
biological damage constitutes
the event of the injurious health event, while subjective moral
damage (and pecuniary damage) belong to the category of
damage - consequence in the narrow sense...
.
The subjective moral
damage, which is sustained in the psychological disturbance of
the offended party, is damage - consequence, in its own sense, of
the illicit act injurious to health and constitutes, when it exists, a
condition for the liability of the victim; the biological damage is,
instead, the event, internal to the health-damaging fact, which
must necessarily occur and be proved, and we cannot expect to
find out about the possible consequences external to the event
itself (moral or patrimonial) without the complete realisation of
the latter, including, obviously, the event of the deterioration of
the psycho-physical integrity of the offended party. Biological (or
physiological) damage is specific damage, it is a type of damage,
identified with a type of event. Subjective moral damage is, instead,
a type of damage - consequence, which can derive from a numerous
series of types of event; just as a type of damage - consequence,
an objective condition of liability, is patrimonial damage, which, in
turn, can derive from different typical events.
Italian jurisprudence has given rise to various decisions
that have regulated the various aspects of the subject of
non-
patrimonial damage
and which are a central guide in the legal
development of this concept, among which are the following:
i)
Ruling No. 233 of the
Corte Costituzionale (
2003), where
it is held that the
traditional assertion that the non-patrimonial
damage protected by art. 2059 cod. civ. si identificicherebbe con il
cosiddetto danno morale soggettivo
, as long as
in the framework
of a bipolar system of patrimonial and non-patrimonial damage
,
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a costituzionalmente orientata interpretazione dell’art. 2059 cod.
civ, tesa a ricomprendere nell’astratta previsione della norma ogni
danno di natura non patrimoniale derivante da lesione di valori
inerenti alla persona: e dunque sia il danno morale soggettivo,
inteso come transeunte turbamento dello stato d’animo della
vittima
;
sia il danno biologico in senso stretto, inteso come lesione
dell’interesse, costituzionalmente garantito, all’integrità psichica e
fisica della persona, conseguente ad un accertamento medico (art.
32 Cost.); or finally the damage (often defined in doctrine and
in jurisprudence as systemic) deriving from the injury of (other)
interests of constitutional rank inerent to the person
.
ii)
Judgments Nos. 8827 and 8828 of the
Corte di
Cassazione Civile
(2003)
, in which non-pecuniary damage was
admitted for the loss of the parental relationship produced by
a
plurioffensive event
, in the first case for the
damages related
to the tetrapresi spastica ed alla atrofia cerebrale da asfissia
neonatale da cui era affetto, assumendo che l’infermità era stata
determinata da errori diagnostici e/o da comportamenti omissivi
del personale sanitario dell’ospedale dove il bambino era nato il
15/4/1982 a seguito di parto cesareo
e il secondo per
tutti i danni,
patrimoniali e non patrimoniali, da essi subiti, sia iure proprio che
iure hereditatis
.
The Court of Cassation, in both judgments, determined
the division and independence between article 2059 of the
Codice Civile
and article 185 of the
Codice Penale
. It states that
non-patrimonial damage must be considered as a broad category,
comprising any hypothesis in which there is a value inherent to the
person
other than the
objective moral damage
, finding support, on
the one hand,
in the progressive evolution verified in the discipline
of this sector, contrasted by the new legislation and jurisprudence
in relation to the protection of non-patrimonial damage, la sua
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accezione più ampia di danno determinato dalla lesione di interessi
inerenti alla persona non connotati da rilevanza economica
and on
the other hand, in the jurisprudential evolution
sollecitata dalla
sempre più avvertita esigenza di garantire l’integrale riparazione
del danno ingiustamente subito, non solo nel patrimonio inteso in
senso strettamente economico, ma anche nei valori proprii della
persona (art. 2 Cost.).
A
bipolar system
of compensatory protection of the
interests of the individual can therefore be configured, in which
patrimonial
and
non-patrimonial damage
coexist, made up in
turn of
biological damage in the narrow sense
,
objective moral
damage
and the
various and subsequent pre-judgements
as a
consequence of an injury to a protected constitutional interest,
taking into account that
tutte le volte che si verifichi la lesione di
un tale tipo di interesse, il pregiudizio consequenziale integrante il
danno morale soggettivo (patema d’animo) è risarcibile anche se il
fatto non sa configurabile come reato. And it should be noted that
in the equitable settlement of subsequent judgements, the judge
cannot disregard what has already been recognised for the recovery
of the objective moral damage, in relation to the aforementioned
unitary function of the recovery of the damage to the person
.
iii)
Le Sezione Unite Nros. 26972, 26973, 26974 and
26975
of the
Corte di
Cassazione civile
(2008), in which the
judges sought to limit the expansion of a new conception of
damage, known as
systemic damage,
defined
as any damage of
a nature that is not merely emotive and internal, but objectively
acceptable, provoked on the habitual behaviour of the subject,
which alters his or her life and relational assets that were his or
her own, inducing him or her to make different life choices in terms
of the expression and realisation of his or her personality in the
external world
.
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The compensation of this type of damage does not result
from a settlement derived from an autonomous classification
of the damage, because, according to the Court, it
does not
emerge, within the general category of “non-patrimonial damage”,
as a
subcategory
, but as a
mere descriptive synthesis
, where
the
different denominations (moral damage, biological damage,
damage due to loss of parental relationship) adopted by the twin
judgments of 2003, and received by the judgment, N. 233/2003 of
the Constitutional Court,
are understood.
233/2003 della Corte
Costituzionale
.
The Supreme Court censured the conduct of the so-
called
giustizia di prossimità
in which ample protection is
granted to injuries that do not entail the need for compensation,
because they consist of
disagi, fastidi, disappunti, ansie ed in ogni
altro tipo di insoddisfazione concernente gli aspetti più disparati
della vita quotidiana che ciascuno conduce nel contesto sociale
. In
this sense, the so-called imaginary rights
such as the right to the
quality of life, to the state of well-being, to serenity: in short, the
right to be happy,
do not fall within the catalogue of
essential
damage, so
that beyond the cases determined in ordinary
law, only the detriment of an inviolable right inherent to the
individual person is a source of non-pecuniary liability for
compensation.
The possibility of extending the list of cases prescribed
for the compensation of non-pecuniary damage is admitted.
However, as regards the payment of mental damages in the
contractual framework, the dominant doctrine in Italy, as in
most countries, initially refused to admit this possibility, arguing
that fault in a contract plays an important role in determining
the scope of the non-performance of a performance, which has
a pecuniary connotation, so that in this context there cannot
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be room for a claim of a moral nature, since its essence does
not represent the object of an obligation in the proper sense
(Scognamiglio, 1957).
There was a limit caused by the restrictive interpretation
of Article 2059 of the
Codice Civile
, which limited its applicability
only to cases of liability for an unlawful act, in particular those
arising from the commission of a criminal offence, and in no way
alluded to cases of obligations established in a prior agreement.
Hence, the thesis of negation was seen on two important
grounds,
i)
the topographical location of Article 2059 within
the
Codice Civile
(
Titolo IX dei fatti illeciti
), exclusively referred
to the non-contractual field; and
ii)
the patrimonial nature of
the contractual legal bond.
Another part of the doctrine (De Cupis, 1979; Russo,
1950; Asquini, 1952; Barassi, 1964), based on the jurisprudential
tendency to use an “
interpretazione costituzionalmente orientata
”
of the laws, has expressed itself in favour of a broad perception
of the aforementioned provision, applying an analogical
extension with respect to the wrongs of contractual liability,
since it is the only rule of the
Codice Civile
that regulates the
compensation of non-pecuniary damage. There is no express
legal prohibition within the body of law that excludes the claim
for non-pecuniary damage in a convention, which is why the
content of this article must be analysed as a general solution that
allows for the elimination of all uncertainties and discussions
on the matter (De Cupis, 1979).
A contract that has been studied from this perspective
in the European Union, and which is worth mentioning at this
point, is undoubtedly that which has as its object the enjoyment
of package tours, regulated by the above-mentioned European
directive CEE 314/1990, adopted by Italy and accepted by the
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local legislator with Legislative Decree No. 111/1995. 111/1995,
which established, in its article 15 entitled ‘
responsabilita’ per
danni alla persona’
, that
the damage deriving to the person due
to the inadequacy or unsatisfactory execution of the services that
form the object of the tourist package is punishable within the limits
of the international conventions that regulate the matter, of which
Italy or the European Union are a part....
The only legal case in
which compensation for non-pecuniary damages is allowed as
a consequence of the non-fulfilment of a contractual obligation
is the one and only legal case in which compensation for non-
pecuniary damages is allowed.
In case law, as stated above, the decisions of the
Corte
Costituzionale
and the
Corte di
Cassazione Civile
of 2003 and
2008, opened the way for the inclusion of non-pecuniary
damage in the contractual relationship, as the interpretation
of Article 2059 aimed at taking into account the constitutional
precepts, allows the reparation of the injuries caused to a
person in the sphere of his fundamental rights protected in
article 2 of the Magna Carta of the Italian peninsula, according
to which
the Republic recognises and guarantees the inviolable
rights of man, both as an individual and in the social formations
where his personality develops, and requires the fulfilment of the
non-derogable rights of political, economic and social solidarity.
In the text of Judgments Nos. 26972-26975
of the
Corte di
Cassazione Civile,
non-pecuniary damage is expressly mentioned
with respect to contractual liability in the following terms:
i) The non-patrimonial damage resulting from the failure
to fulfil obligations, according to the prevailing opinion in doctrine
and jurisprudence, was not considered risarcibile. The obstacle was
due to the lack, in the discipline of contractual liability, of a rule
analogous to art. 2059 c.c., which is detailed in matters of wrongful
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acts. In order to aggirare l’ostacolo, in the case in which, in addition
to inadequacy, a violation of the principle of neminem laedere
would be configurable, the jurisprudence had elaborated the theory
of cumulo delle azioni, contractual and extra-contractual. Apart
from its dubious dogmatic foundation, the thesis does not resolve
the question of the recovery of non-patrimonial damage in the
broad sense, because it brings it, in relation to the non-contractual
action, within the strict limits of art. 2059 c.c. in collegamento
with art. 185 c.p., sicché il risarcimento era 114 condizionato
alla qualificazione del fatto illecito come reato ed era comunque
ristretto al solo danno morale soggettivo
.
ii) The constitutionally oriented interpretation of art. 2059
c.c. now allows us to affirm that also in the area of contractual
liability, the recovery of non-pecuniary damages is a given. From
the principle of the necessary recognition, for the inviolable rights
of the person, of the minimum protection constituted by the
compensation, it follows that the injury of the inviolable rights of
the person that has determined a non-pecuniary damage entails
the obligation to compensate such damage, whatever the source of
the liability, contractual or extra-contractual. If the non-fulfilment
of the obligation determines, in addition to the violation of the
obligations of economic recovery assumed with the contract, also
the injury of an inviolable right of the person of the creditor, the
protection of the non-pecuniary damage may be based on the
action of contractual liability, without having to go back to the
background of the accumulation of actions
.
iii) What interests of a non-pecuniary nature can be
considered important in the area of contractual obligations, is
confirmed by the provision of art. 1174 c.c., according to which
the performance that forms the object of the obligation must be
susceptible of economic valuation and must correspond to an
interest, also non-pecuniary, of the creditor. The identification,
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in relation to the specific contractual hypothesis, of the interests
included in the area of the contract which, in addition to those
with patrimonial content, present a non-patrimonial character,
is aimed at establishing the concrete cause of the negotiation, to
be understood as a synthesis of the real interests that the contract
itself is directly aimed at realising, beyond the model, also typical,
adopted; synthesis, and therefore concrete reason, of the contractual
dynamics
.
iv) In the area of contractual liability, compensation
will be regulated by the rules set out in the matter, to be read in a
constitutionally oriented sense. L’art. 1218 c.c., in the part in which
it provides that the debtor who does not fulfil the due performance
is liable for the compensation of the damage, cannot therefore be
referred only to the patrimonial damage, but must be considered
comprehensive of the non-patrimonial damage, as long as the
failure to fulfil has determined damage to the inviolable rights
of the person.
The same wider content is found in art. 1223 c.c.,
secondo cui il risarcimento del danno per l’inadempimento o per
il ritardo deve comprendere così la perdita subita dal credore come
il mancato guadagno, in quanto ne siano conseguenza immediata
e diretta, riconducendo tra le perdite e le mancate utilità anche i
pregiudizi non patrimoniali determinati dalla lesione dei menzionati
diritti. D’altra parte, la tutela risarcitoria dei diritti inviolabili, lesi
dall’inadempimento di obbligazioni, sarà soggetta al limite di cui
all’art. 1225 c.c. (non operante in materia di responsabilità da
fatto illecito, in difetto di richiamo nell’art. 2056 c.c.), restando, al
di fuori dei casi di dolo, limitato il risarcimento al danno che poteva
prevedersi nel tempo in cui l’obbligazione è sorta
.
Thus, Italy has recognised both in its rules and in its
courts that non-pecuniary damage must be compensated within
the framework of the recognition of the fundamental rights
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inherent to a person, on the basis of a
constitutionally oriented
interpretation of
Article 2059 of the
Codice Civile
, significantly
broadening the concept of non-pecuniary damage, extending
its notion beyond subjective non-pecuniary damage.
1.5 Venezuela
In the Venezuelan legal system, non-pecuniary damage
finds its legal basis in Article 1196 of the Civil Code (1982),
which provides that:
The obligation of reparation extends to any material or
moral damage caused by the unlawful act. The judge
may, in particular, award compensation to the victim
in case of bodily injury, violation of his or her honour,
reputation or that of his or her family, or personal
liberty, as well as in case of violation of his or her home
or of a secret concerning the injured party. The judge
may also grant compensation to relatives, relatives of
the victim, or spouse, as reparation for the pain suffered
in the event of the victim’s death. (art. 1196).
With the drafting of the Civil Code that came into force
in 1942 (repealed in 1982), the recognition that the courts of
first instance and even the former Federal Court and Court of
Cassation had been giving to emotional injuries materialised,
incorporating in its provisions (still in force to date) the
admission of the claim for non-pecuniary damages caused by
the commission of an unlawful act. Previously, in the absence
of legislation on the matter, judges had begun to admit, in cases
of tort liability, that a person could suffer injuries to both their
financial and moral assets.
The Venezuelan substantive civil legislation has its
foundation in the French-Italian project of obligations and
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contracts of 1927 (in fact Article 1196 of the Civil Code is a
copy of its provision No. 85), elaborated by a commission of
eminent European jurists of French and Italian origin with
the purpose of unifying the rules of both countries, using as
reference the Italian Civil Code of 1865 and the French one
of 1804 in force at the time, and incorporating the advances
of the legal science in the last years. As was mentioned in
previous apices, the development of non-pecuniary damage
in these countries was propitiated at the jurisprudential level,
not in positive law, which was replicated in each of the nations
that over the years have incorporated into their legal order the
European tendencies, product of the inheritance of the
civil law
legal system.
Of all the categories of damages contained in the
Venezuelan legal system, moral damages is the one that has had
the greatest jurisprudential relevance, firstly because questions
have always arisen within the doctrine that do not find answers
in the interpretation of the normative text, but in sentences
derived from judges who in their capacity as operators of the law
have had to dictate, and secondly because of Article 1196 itself,
which leaves it to the discretion of the courts to estimate an
injury that by its very nature has been considered inestimable.
The terminology used to identify a pecuniary injury
suffered by a person in Venezuela is that of “moral damage”,
mainly because that is what the Civil Code itself calls it, although
the doctrine tends to distinguish two classifications of this:
(i)
those damages linked to material damage, which affect the
social part of the moral heritage of an individual, such as their
reputation or that which falls on their physical appearance,
called aesthetic damage, important for those who live off their
image; and, (
ii)
those that disturb the affective or sentimental
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part of a subject, such as the pain experienced by someone who
suffers the death of a relative/friend or that which originates
from a state of anxiety or worry (Domínguez, 2017, p. 244);
what characterises the difference between one concept and the
other is the possibility of the quantification of the harm.
While some countries establish scales in their
legislation to justify the determination of the
quantum
of non-
pecuniary damages, Venezuelan law leaves the estimation of
the quantification to the discretion of the judge, which is why
the Venezuelan courts are obliged to follow the jurisdictional
criterion issued almost 20 years ago by the Social Cassation
Chamber of the Supreme Court of Justice, in its judgment
No. 144 of 7 March 2002 (Case: Hilados Flexilón C.A. vs
José Francisco Tesorero Yáñez. vs José Francisco Tesorero
Yáñez), where it established that any judge hearing an action
for non-pecuniary damages must examine the specific case
by analysing the following aspects:
i)
the entity (importance)
of the damage, both physical and psychological (the so-called
scale of moral suffering);
ii)
the degree of culpability of the
defendant or his participation in the accident or unlawful act
that caused the damage (depending on whether it is objective
or subjective liability);
iii)
the conduct of the victim;
iv) the
degree of education and culture of the claimant;
v) the
social and
economic position of the claimant; vi) the economic capacity
of the claimant;
vi)
economic capacity of the defendant;
vii)
possible mitigating factors in favour of the liable party;
viii)
the
type of satisfactory compensation that the victim would need
to occupy a situation similar to that prior to the accident or
illness; and, finally,
ix)
pecuniary references estimated by the
Judge to assess the compensation that he considers equitable
and fair for the specific case. In this way the objectivity of the
amount is ensured, the Judge must indicate in the grounds for
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his decision, the prior analysis of all these points, thus justifying
the reasons that led him to quantify the claimant’s claim in the
amount specified.
Regarding the admissibility of the claim for this
classification of damage as a consequence of the breach of a
pre-established obligation by the parties to an agreement, the
doctrine and jurisprudence have been pronouncing on the
matter for some years. There are contradictions in the positions
expressed on the matter, both jurists and judges have not been
unanimous in identifying a unison criterion in this regard, on
the one hand it is established that in Venezuela contractual and
non-contractual civil liability coexist, being able to generate
in the former the reparation of moral and material damages
(Domínguez, 2017, p. 252), since they are not mutually
exclusive and find the object of their claims in the cases in which
the so-called “cumulative liability” is verified. In the opinion of
Domínguez (2017), the expression cumulo de responsabilidad
is not appropriate, since this figure:
It does not imply that the subject can accumulate two
indemnities for the same act, which would be absurd
because they are two different regimes, notwithstanding
the unity of civil liability. Rather, it is a matter of
‘choice’. In effect, it is a question of deciding whether,
faced with the same event, the subject can take the path
of contractual civil liability or, on the contrary, that of
non-contractual liability. (p. 287).
On the other hand, moral damage is not a consequence
of the non-fulfilment of a contractual obligation, in addition to
the fact that it is only contemplated in our legislation in the
liability for a wrongful act (Maduro, 2003, p. 897).
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In Judgment No. 176 of the Civil Cassation Chamber
of the Supreme Court of Justice of 20 May 2010 warns “of
the new criterion widely developed by prominent Argentine,
Chilean, Brazilian, Spanish and other authors, in relation to the
viability of moral damages derived from contractual breaches,
as well as judgments of the Chamber itself (...) which are in
clear contradiction with the statement offered by the appellant
according to which ....in matters of contractual liability there is
no compensation for moral damages...” and points out that “the
impossibility of requesting moral damages as a consequence
of breach of contract is an outdated thesis, as the current
trend is the compensability of moral damages in matters of
obligation, provided that certain circumstances and conditions
are verified, which will have to be established in each specific
case”; however, to the contrary, in decision no. 644 of 22
October 2014 of the same chamber states that “moral damages
are only contemplated in our legislation in liability for wrongful
acts..., as enshrined in article 1.196 of the Civil Code”.
In any event, in Venezuela both the majority of the
decisions of the Supreme Court and the doctrine have been in
favour of the admissibility of the admissibility of moral damages
in the contractual framework, finding the solution to justify this
thesis, in accordance with the Venezuelan legal system, in the
finding of the applicability of the aforementioned “cumulo de
responsabilidad”, which
leads to the coexistence of contractual
and non-contractual liability, whenever a wrongful act arises on
the occasion of or in relation to a contract, the non-performance
of which gives rise to material and non-material damages.
Mélich-Orsini argues that there is a doctrinal current
that is inclined to accept cumulative liability under certain
circumstances, i.e. in order to allow the rules applicable to tort
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liability to be applied, it would be necessary that a different
harmful fault be joined to that which consists of the mere
violation of the contractual obligation. This would presuppose
two conditions:
i)
that the act implies the “violation of a legal
duty independent of the contract”
,
and
ii)
that the damage
caused by that act consists of the “deprivation of a pecuniary or
moral good other than the benefit itself assured by the contract”.
The first one excludes any idea of a contest of actions when the
defendant has not violated any duty other than his contractual
duties, even if such violated duties are not expressly agreed
but those that are considered implicit according to the text of
positive law; and the second one excludes any application of the
provisions regulating tort liability when the damage suffered by
the victim is limited to the loss of advantages derived from the
contract (Melich, 2006).
1.6. Latin America
Latin Americans followed the trend developed by the
countries of the European Union on this issue. Some decided to
reform their Civil Codes in order to incorporate non-pecuniary
damage within the doctrine of contractual civil liability,
overcoming the arguments previously put forward in their own
legal systems, and others have supported this thesis on the basis
of binding case law pronouncements by Supreme Courts or
Tribunals, applicable in the seats of their jurisdictional bodies.
By way of summary, the following table shows the
regulations in force in various countries in the Americas, which
over time have increasingly accepted this theory, unless such an
assumption is expressly prohibited by law.
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Propriety
Contractual
Non-material
Damages
Regulations
Argentina
-) Acceptance of
the Civil Code.
-) Article 522 of the Civil Code, drafted
by
Dalmacio Vélez Sársfield
and in force
from 1871 until 2015, established that “in
cases of compensation for contractual
liability, the judge may sentence the
liable party to compensation for the
moral damage caused, in accordance
with the nature of the event giving rise
to the liability and the circumstances of
the case”.
-) Jurisprudence: Chamber K of the
National Chamber of Civil Appeals,
15 August 1994. Case: Emilio Cornejo
v. Ricardo Maiztegui, agreed on the
compensation of moral damages in
favour of the plaintiff caused by the
lack of restitution of a property in
the framework of a lease contract
(Hernández et al., n. d.).
-) The very new Argentine Civil and
Commercial Code (approved by law
26.994 Enacted according to decree
1795/2014) unifies the standing regime
in the contractual and non-contractual
sphere without making reference to
whether the damage arises from the
non-performance of an agreement or
from the duty not to harm another.
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Bolivia
-) Denial of the
Civil Code.
-) Article 994 of the Bolivian Civil Code:
“I. The injured party may request, when
possible, compensation for the damage
in kind. Otherwise, compensation must
be assessed by evaluating both the loss
suffered by the victim and the lack
of profit insofar as they are a direct
consequence of the harmful event. II.
Moral damage must be compensated
only in the cases provided for by law.
III. The judge may equitably reduce the
amount of compensation when fixing
it, considering the financial situation
of the liable party who has not acted
maliciously”.
Chile
-) Silence of the
Civil Code.
-) Jurisprudential
acceptance
through the
interpretation of
Article 1556 of
the Civil Code.
-Article 1556 of the Chilean Civil Code:
“Compensation for damages includes
consequential damages and loss of
profits, whether they arise from the
obligation not having been fulfilled, or
having been fulfilled imperfectly, or
from the delay in its fulfilment. With the
exception of those cases in which the
law expressly limits it to consequential
damages”.
-) The Supreme Court ruled for the
first time in favour of the applicability
of compensation for non-pecuniary
damages for breach of contract in 1994,
becoming a binding criterion in 2001
(Domínguez, 2017).
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Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
Colombia
-) Silence of the
Civil Code.
-) Denial of the
jurisprudence
of the Supreme
Court of Justice.
-) Acceptance in
the text of the
Commercial Code
in contracts of
carriage.
Article 1006 of the Colombian Code of
Commerce: ‘the heirs of the passenger as
a result of an accident occurring during
the performance of the contract of
carriage, may not exercise cumulatively
the contractual action transmitted by
the deceased and the non-contractual
action derived from the damage
that his death has personally caused
them; but they may try it separately
or successively. In either case, if it is
proved, there shall be compensation for
the damage in default”.
Ecuador
-) Denial of the
Civil Code.
(-) Denial of
Jurisprudence
Article 1572 of the Ecuadorian Civil
Code: “Compensation for damages
includes consequential damages and
loss of profits, whether they arise from
the non-fulfilment of the obligation, or
from its imperfect fulfilment, or from
the delay in its fulfilment. Except in
those cases where the law limits it to
consequential damage. Also exempt are
the damages for non-pecuniary damage
determined in Title XXXIII of Book IV
of this Code”.
Peru
-) Acceptance of
the Civil Code.
-Article 1322 of the Peruvian Civil
Code: “Moral damage, when it has
been incurred, is also susceptible to
compensation”.
De Vita, M.
El daño no patrimonial en el derecho contractual
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Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
Mexico
-) Acceptance of
the Civil Code.
-Article 1916 of the Federal Civil Code:
Moral damage is understood as the
affectation that a person suffers in his or
her feelings, affections, beliefs, decorum,
honour, reputation, private life, physical
configuration and appearance, or in the
consideration that others have of him or
herself. Moral damage shall be presumed
to have occurred when the freedom
or physical or psychological integrity
of persons is unlawfully violated or
impaired. When an unlawful act or
omission causes non-pecuniary damage,
the person responsible for it is obliged
to compensate it by means of monetary
damages, regardless of whether material
damage has been caused, both in
contractual and non-contractual liability.
The same obligation to repair moral
damage shall be incumbent on those who
incur in strict liability in accordance with
Articles 1913, as well as on the State and
its public servants, in accordance with
Articles 1927 and 1928, all of the present
Code...”.
Table 1:
Moral damages in Latin American countries
Own elaboration
It is evident from the foregoing that in Latin American
comparative law, in most countries, the thesis that denies
compensation for non-pecuniary damage for breach of a
contractual obligation has been overcome; however, the
jurists and judges of some countries still hinder the opening
of this thesis. Thus, three fixed positions can be identified:
i)
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Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
the express recognition in the Civil Codes or in special local
laws;
ii)
the taxing civil regulation that delimits assumptions
in which an action for compensation for non-pecuniary
damage is applicable in certain contracts;
iii)
the admission and
development of jurisprudential criteria by virtue of the absence
of legislation on the matter; and,
iv)
the express prohibition in
the legal bodies.
CONCLUSIONS
The discussions generated around the category of non-
pecuniary damage have notably developed a body of innovative
jurisprudence and doctrine in the light of the study of modern
law. Today we can not only affirm that suffering has a price
without triggering a moral dispute, but also that the contractual
relationship between the person who suffers it and the one who
causes it is not a limit to rule out its immediate reparation.
To annul the idea of compensation for this classification
as being contrary to the economic function of the contract,
or to assert that the requirement of foreseeability of the
contractual damage prevents its possible regulation within a
convention, as it is indeterminable for the effects of the obligor
(by ignoring the scope of non-performance), are arguments
which, in the foundations of a current legal order, do not enjoy
any validity. This is why judges, in their role as interpreters,
have had to rethink their criteria and create new equitable
parameters in which, on the one hand, the aggrieved party’s
need to compensate for the moral injury suffered and, on the
other hand, the debtor’s certainty of knowing the consequences
of non-fulfilment of an obligation coexist.
The doctrine has also understood the need to overcome
the fundamentals that oppose the moral prejudice to the
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Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
contract. There are more and more jurists who agree to the
possibility of its compensation, developing editorial lines, for
academic purposes, where they establish conjectures appropriate
to contemporary times or creating organisations with the aim of
harmonising the law, highlighting the urgency of updating the
substantive rules, many of them in force since the last century,
due to the disuse and ineffectiveness of their content.
The materialisation of the incorporation of these
new currents in the local legal instruments is a fact that has
been manifesting itself in the codification of the civil rules
for some years now. The discussion on the applicability of
this proposition has been left in the past in the legislations of
some Latin American countries, today their Codes adopt a new
category of damage in the contractual sphere, writing one more
chapter in the legal history of civil liability, which will serve as
a basis for the members of the legislative power of other nations
to replicate their example and formalise what is happening in
the seat of their courts, taking into account the essence and
function that has kept this institution in force to date.
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Received:
23-05-2021
Approved:
29-04-2022
Marianna G. De Vita R. :
Lawyer from Universidad Metropolitana
and Diploma in Hydrocarbons Law.
Lecturer at Universidad
Central de Venezuela (Derecho de Obligaciones). Master of
Law from Universitá degli Studi di Roma Tor Vergata, (“Diritto
Romano e Sistemi Giuridici Contemporanei”).
PhD(c) in Law.
Email:
mariana671@msn.co
City:
Caracas
Country:
Venezuela
ORCID:
https://orcid.org/0000-0003-4387-2637