The subject of moral damages is perhaps one of the most difficult and rugged to deal with, and even more difficult it is to try to develop some criteria on how it should be evaluated. This small effort is only intended to clarify the concept that the determination of moral damages is a task of objective nature, since, as it can be observed when the subject matter is revealed, our judges and magistrates are daily faced with the commendable and controversial work of calculating a “monetary compensation” for a damage that the doctrine qualifies as a non-pecuniary damage, meaning that this damage is not subject to economic valuation.
As you can imagine, it will not be possible to make this calculation, as Aurelio Baldor would say, “by a simple inspection”, but we have to necessarily enter into concepts that are not of total and complete domain of the judge, elements that only in the branch of forensic psychiatry we could find.
What also motivates us is to try to find a way to establish some basic criteria in accordance with what the norms of Psychiatry and Psychology dictate to us, holding it and framing them in these sciences so that they clearly indicate how could an amount be calculated to compensate when feelings, affections, beliefs, decorum, honor, reputation, etc. are affected.
It is also necessary to add the proviso that although it may seem obvious that compensation means repairing the damage caused, For this reason it is necessary that we look in detail at the possibilities that exist of having caused damage of a nonpecuniary nature, so we must briefly address the issue of legitimacy to act in a process of moral damage and how it should be accredited. We must also specify that we will try to outline these evaluation criteria in an exemplary manner due to the complexity and relative nature of the subject.
I. Concept and definition of Moral Damages:
Before entering into the concept of moral damages as an independent entity, we must define what is damage, since the concept of moral damages is only one type within the concept of damage.
Damage, for the Spanish Language Academy means detriment, harm, impairment, pain, discomfort, or the mistreatment of a thing. The doctrine tends to give a merely objective concept of damage, characterizing it as “the impairment that a person suffers as a result of a given event or occurrence, whether in his or her vital goods, or in his or her property or assets. Since this concept is so objective, it does not take into consideration any type of extra-patrimonial damages, as when it refers to vital goods, we understand that they are the parts of the body; patrimony and property.
Manuel Osorio in his dictionary of Judicial and Political Sciences refers us to the meaning dignitary tort. The dignitary tort then, is defined by Osorio in the following way: “consists of the detriment suffered by the extra-patrimonial assets that have legal protection, and if the effects of the anti-juridical action are taken into account, the dignitary tort is the non-pecuniary damage that is infringed upon the person in the moral interests protected by the law”.
Our problems begin here, since as a Spanish jurist with the surname of Ortega said, “we already have enough with the hypothetical real to deal with the hypothetical possible”, however, sometimes it is necessary to do so.
Unlike other legislations, our code does define moral damages in its Article 1644 a when it establishes that;
“Moral damage refers to the affectation that a person suffers on his feelings, affections, beliefs, decorum, honor, reputation, privacy, configuration and physical aspects or in the consideration that others may have about him/her.”
We believe that before knowing how these damages can be valued, we will have to specify what they are and how these damages can be affected.
II. Psychology of Affectivity:
Since the purpose of our study is the moral damage and the way to assess it, it is necessary that we enter the field of Psychiatry to analyze which is the true purpose of our research, and the true purpose of our research is none other than our affective life, which comprises a series of phenomena of the emotional sphere of our personality without being accurately delimited by psychologists.
Nevertheless, the author Vallejo Nágera, shows us in his psychiatry treatise, that from the practical and clinical point of view, two groups of affective phenomena must be separated, which are as follows:
a. The feelings themselves; and
b. The emotional affections.
By feelings, we understood it is referred to certain psychophysical processes that are particularly simple, while emotional affections are of a more complex nature, and the orientation of the affective life of each person is totally different from the others.
The feeling can also be defined as a singular state of consciousness, personal and independent, that is endowed with its own qualities. In addition, the feeling has a universality of stimuli, however it is directly related to the so-called principles that each individual has. On the other hand, the emotional affections are of an affective complex that is translated in a sentimental position different from the one that the individual lives daily.
For us, for most psychiatrists and psychologists, unintentionally, this distinction is unnecessary since both of them are part of the complex concept of moral damage, and if allowed, there would be a gender-to-species relationship according to what we can observe from the following classification of psychic feelings by Shneider:
a. Situation Feelings:
They are those feelings referred only to the ego state, and at the same time they are classified in pleasant (happiness, pleasure, agility, happiness, joy, rest, satisfaction, security); and unpleasant (sadness, worry, anguish, fear, restlessness, uneasiness, failure, helplessness, nostalgia, bad mood, anger, rage, envy, jealousy, etc.).
b. Feelings of self- worth and exo-valuation:
The feelings of self-worth are those that refer, as the code says, to the consideration that the person has about himself or herself; these in turn can be affirmative such as strength, pride, vanity, dignity, superiority, triumph, comfort; or they can be negative such as shame, guilt, etc.
The feelings of exo-valuation are those that concern to the consideration that third parties have about a person and are also classified in affirmatives, such as love, trust, compassion, interest, justice, nobility; and in negatives, such as hate, repugnance, contempt, indignation, etc. We said then that it is a gender-to-species relation where the feelings are the gender; and the sentimental affections, the species.
III. The determination of the Moral Damage:
The central object of the damage, in other words, in this context of what is “morally damaged” we will have now to emphasize, the fact that it must be proven that the unlawful action has produced a moral damage; and in addition, that it is only indemnified when the damage caused is compensated.
In our humble opinion, moral damage can only occur when there is damage of a psychological nature that affects any of the feelings we have already described. There are those who do not share this opinion and try to differentiate a psychological damage from a moral damage. The Argentinean author, Juan Xavier Vehils Ruiz, in an article about moral damage that I found browsing the Internet, and quoting Hernán Daray, establishes differences between moral damage and psychological damage, based on three criteria to wit:
a. The Pathological Character of the Psychological Damage; in other words, the disturbance of the spiritual balance is always, in his opinion, seen from the point of view of the pathologies, however this moral damage can only be decreed by the judge when an exogenous cause intervenes in the affected person; since there are psychological damages that for having endogenous causes are not susceptible to hold anyone responsible, such as congenital oligophrenic disorders.
b. Active legitimation: It tells us that the moral damage is (for the Argentine legislation) to the article 1078 of the Argentine Civil Code, providing that this active legitimation corresponds only to the forced heirs of the victim or to the direct victim, and that any person has action to claim a psychological damage.
Nevertheless, in our system of civil liability against and extra-contractual is of a guilty nature, and there will always be a need to prove the psychological damage, and also there will always be a causal agent that serves as a means between the offended and the damage caused.
This has been stated by the jurisprudence of our courts on many occasions, where it has been established that the requirements needed for the declaration of civil liability are that there is an anti-legal act, that this act causes a damage, and a causal relationship between the damage and the subject that performs it.
c. As for the active legitimation in our country, in some cases Article 1984 of the Procedural Code allows the abandonment of the criminal action by the declared heirs;
d. As in regards to evidence, Vehils Ruiz states that Argentine jurisprudence has recognized moral damages without requiring proof of them. However, we reiterate that our system does not forgive these facts and all damages must be proven in order to be awarded, including moral damages.
It is always necessary to prove the damages that have been caused to us as a result of a situation in which we are the victims. What is a little more difficult in moral damages is to determine how much these damages are worth, and this is normally set out in a case law that our Courts have created based on a 1982 ruling, which provides that “now, it is well known that there is no parameter for quantifying moral damages due to their special nature. However, our highest court has established a specific sum for these cases, setting it at (US$ 3,000) under the following considerations:
This equitable point of view, without entering into the actuarial analysis or the corresponding mathematical operations, is resolved by the Chamber through the practical statement that the quantum of non-material damage has always been established by jurisprudence in the sum of US $ 3,000.00 and there are no reasons to vary it now. Judgment of July 27, 1982 – Judicial Record of July 1982, p. 66 and subsequent.
This criterion has been reiterated on other occasions, such as in the proceedings CONDOMINIO BRISA MARINA Y OTROS vs DIAZ GUARDIA Y OTROS. In the April 30, 1993 ruling; in both cases there was proof of the moral damage caused.
Based on the fact that all moral damages caused are of a psychic nature, their determination can be solved by the ordinary means of evidence, and then once determined, we must then quantify them.
IV. Criteria for determining moral damages:
As we mentioned in our legally mandated introduction, our judges must set a monetary compensation for a situation that the same doctrine calls non-pecuniary damage.
We must undertake this task not without first remembering that, since feelings are the subject of a universality of stimuli, there will be as many moral damages as situations that cause them, since some of these concepts can be damaged and it is necessary to repair this damage.
We will then make a tour of the moral damages that are most commonly requested in order to outline a evaluation criteria that is more in keeping with healthy criticism.
The standard offered in article 1644 of the Argentine Civil Code clearly establishes that the amount of the moral damages will be determined by the judge, taking into account the following factors:
1. The rights of the injured parties
2. The degree of responsibility
3. The economic situation of the person in charge
4. The economic situation of the victim
5. The other circumstances of the case.
Going back to the central point of this issue, let us remember that we are referring to the problem of pecuniary compensation for moral damages and not to the compensation of the integrity of the aggrieved individual to whom the same Article 1644 establishes the way in which this reparation should take place.
Let us see then each one of the parameters with which the judge must restore a pecuniary value to the moral damage.
1. Right of the Injured:
Specifically, it is limited to the moral damage of an injured person and within this specific situation it is appropriate that we frame ourselves in the responsibility derived from the offence of negligent injuries regulated in Article 139 of the Criminal Code, whose maximum representation in our law is the processes of culpable injuries or for recklessness.
Does it mean that in the crimes of culpable homicide there is no room for a request for moral damages? In our opinion, applying the analogy, since we are under the aegis of the civil law that allows us to use it, and since the effect on emotions and feelings is due to different stimuli, we would conclude that it is possible1 , even though the law does not establish it directly, since we maintain that the way the article is written is exemplary and not restrictive, which has been reflected in the law as examples of the criteria that the judge must follow in order to determine the quantum of moral damages. These may also include the rights of those affected by the death of a father, son, brother, etc.
In analyzing the criterion of the moral damages caused by the death of a parent, it might be suggested that the criterion be to assess moral damages at twice the amount of the compensation proven in the material part; that is, to provide the family with the resources that the parent would have provided, within the economic possibilities that the family had at the time of death.
Since most people would not change their lives for money, we cannot think that the moral indemnity is infinite, even if that indemnity does not “repair” in the strict sense of the word since the deceased could never be resurrected.
The limitation found in the thesis we are trying to expose, is what happens if the deceased does not work at the time of his /her death. With such high unemployment rates it is not uncommon for some people who have died in car accidents to report no income at all, and this does not mean that their life is worthless, it is as much as the assumption that the person had died “with no use to living”.
If we are dealing with the death of a minor child, the situation is much more complicated, however Posner suggests that the pecuniary compensation would be the cost of maintenance based on the opportunity costs of the market. If we take this as a basis for compensating this difficult transaction for moral damages we suggest at least three times the pecuniary compensation.
2. The degree of Responsibility:
This criterion assumes the co-authorship and participation in the loss or impairment of the life or physical integrity of the person, a situation that the judge must take into account in order to foist moral damages in this case. It would then be that the co-perpetrator or accomplice, depending on his/her degree of responsibility, could be sentenced to pay greater or lesser compensation.
3. Financial Situation of the Responsible Party:
Of the criteria, this seems to us to be the most objective of all, however, this situation is not like that of the person obliged to give maintenance, in which the maintenance provider is considered largely his/her economic situation, the affectation of some of the levels of our emotional life, in our opinion, has nothing to do with the economic possibility of the defendant; however, not having in the civil way means of compelling the insolvent party to pay in civil proceedings, it is perhaps an appropriate practical criterion, since it is useless to establish a sum of one million dollars for moral damages to someone who cannot pay them, however nothing prevents that using the criteria above mentioned can reach that amount of money
4. Other Circumstances of the Case:
This criterion suggests the imposition of a healthy criticism by the judge when evaluating the evidence of the case presented to him/her.
2. Feelings are susceptible to being located according to Schneider’s classification, and can and should also be tested, although on some occasions the physical and biological damage results in moral damage which is always of a psychological nature.
3. The criterion of US$ 3,000 could be exceeded if the judge uses some of the criteria herein for a fairer assessment of moral damages without this causing the victim who suffers the damage to receive exorbitant compensation, always taking into consideration the economic reality of the victim.
4. Human life has no economic value per se; however, the suppression of life causes effects of a patrimonial nature. What is attempted to be measured economically is not life, but the consequences that the interruption of life has on the victim’s patrimony, and the opportunity cost that the victim had, which can be evaluated at a given time.
5. The unhappy wording of Article 1644a of the Panamanian Civil Code outlines somewhat poor and sometimes implausible criteria for the valuation of moral damages.
6. The compensation for moral damages seeks to redress or compensate for psychological situations, since at the time of payment the difficult situation has already passed.
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