Objectivization of moral damage
2015
Moral (non-patrimonial) damage in Serbian law includes physical and
psychological pain and suffering, and fear of sufficient duration and
intensity. This is a purely subjective concept of moral damage: the mere
infringement of non-patrimonial rights, or violation of personal goods as
objects of these rights, does not constitute moral damage, unless they caused
the plaintiff’s physical or psychological pain, or fear, and disturbed his or
her mental equilibrium. Objectivization of moral damage is a change in this
paradigm, towards the understanding of moral damage as an abstract
infringement of a non-patrimonial right of the injured party, irrespective of
any pain or fear caused by such infringement. Moral damage exists if personal
(non-patrimonial) right, or personal good, or legally protected personal
interest is violated, even if the injured party did not suffer any pain or
fear due to this violation. Since 2005, Croatian legislator has abandoned the
long-standing subjective concept of non-patrimonial damage, and
reconceptualized it as an abstract violation of personal rights, including
personal rights of legal entities. The Commission appointed to draft the new
Civil Code of Serbia considers several modes of either partial or complete
objectivization of the concept of moral damage in the prospective
codification. In this paper the author examines the reasons for such change,
and offers arguments in support of the idea that Serbian legislator should
decide on a mixed conception of non-patrimonial damage, that is, to adhere to
the existing concept of non-patrimonial damage, but also to allow for a
violation of non-patrimonial goods or legally protected interests to be
recognized as a type of moral damage, regardless of any psychological
suffering coming out of such infringement.
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