May 12, 2010

Non–pecuniary loss

Non-pecuniary loss is mainly framed by in France and in England. Whereas in German law there are some provisions related to this notion but case-law remains important.

In France, it is possible to get damages awarded even if the claimant has no blood relationship or a relationship by marriage. I was during a long time only the case in criminal law. But since the Lunus, it is possible to recover in civil and in criminal law. It was an injustice in regards of fiancé(e) and foster parents.

In England, it is possible to get damages on the basis of a contract (Jarvis v Swans Tours). Before Jarvis v Swans Tours, the case law allowed to award damages only in cases where the plaintiff suffered physical inconvenience (Bailey v Bullock). The case-law seemed to be indecisive at the scope to give to non-material damages. Finally, Ruxley upheld Swans Tours by permitting a claimant to get damages for the breach of a swimming pool building contract. The court considered that a contract can be intended to provide enjoyment as providing works or goods. This approach may be made in order to take into account the psychology of a claimant who has the feeling to suffer an injustice.

In German law, damages are only allowed on the basis of a specific statutory authorization (§ 253 BGB). But because this provision would let many plaintiffs without remedies, courts usually allowed damages in order to overcome this issue. Parties can even substitutes themselves to the courts by inserting damages clause in their agreements or by bringing evidence to the court.

German law may be the legal system which is the keenest to allowed damages by giving several possibilities to courts and parties in case of non-pecuniary loss compare to French and English law.

Pierre-Patrice TIFI MAMBI

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