About the possibility of awarding non-pecuniary damages in the activity of passenger and luggage transport
Year: 2024 | Issue: 81 | pg. 19 - pg. 33
Authors:
- Associate Professor, PhD Cristina Stanciu
cristina.stanciu1@gmail.com | University of Craiova, Law Faculty, Department of Private Law, Romania
Published on: 30/04/2024
Abstract:
Regarding the possibility of awarding non-pecuniary damages in the activity of passenger and luggage transport, the Romanian Civil Code establishes regulations concerning the compensation for damages and promotes the idea of full compensation thereof, in the sense of repairing both pecuniary and non-pecuniary damages. The regulations of the Romanian Civil Code on the aspects aimed at repairing non-patrimonial damages, i.e. those damages that compensate for physical pain, mental suffering, aesthetic damage, damage to reputation, are found in different regulatory areas of the Code. In this sense, there are the provisions of art. 252-257 of the Civil Code or the provisions of art. 1531 para. 3 which promotes the creditor's right to reparation of non-pecuniary damage. The principle of full compensation concerns the entire matter of civil liability, regardless of the type of liability—contractual or tortious. Considering the common law character of tort civil liability, the provisions of Article 1391 of the Civil Code can also apply in the matter of compensating non-pecuniary damage caused to the creditor through the non-fulfillment of contractual obligations by the debtor. In the matter of non-pecuniary damages, practice and doctrine consider that compensation for non-pecuniary damages resulting from an extra-contractual unlawful act is undeniable and serves as a rule. The one with a more restricted domain of granting and application is compensation for non-pecuniary damages in the domain of contractual liability. Here, only in certain contracts and for the non-fulfillment or improper fulfillment of certain contractual obligations can such compensations be awarded. Examples in this regard are contracts for the transport of passengers and luggage, contracts for the exploitation of copyright and inventor rights, and, in general, those contracts that include obligations to protect persons—hotel contracts, organization, and viewing of performances or sports games. Regarding transport law, the awarding of moral damages can have a dual application: the awarding of moral damages resulting from the improper exercise of transport activity – in the domain of tort liability, or, as the case may be, the awarding of moral damages in contracts for the transport of passengers and luggage – in the domain of contractual liability.
Keywords:
moral damages, passenger transport, luggage
Legal Aspects Concerning Liability and Damage in Civil Law. The Romanian Civil Code does not explicitly define the notion of civil liability. Establishing the content of the notion of civil liability is the prerogative of specialized doctrine. The element of specificity of this type of liability and, at the same time, the differentiation from any type of legal liability—criminal, disciplinary, or contraventional - lies in the obligation to repair damage. In other words, to be liable in civil terms means to repair the harm caused to another. Civil liability represents a legal institution that, in terms of its legal regime, manifests in two forms: one delictual, considered of common law, and another contractual, special, and derogatory. Delictual civil liability represents the obligation of any person to fully repair all damages caused to another by breaching the obligation to respect the rules of conduct imposed by the law or the customs of the place and to not infringe upon the rights and legitimate interests of others (Romanian Civil Code: art. 1349, para. 1 and 2). Contractual liability is the obligation of any person, in their capacity as a party to a contract, to repair the damage caused to the other party by failing to fulfill the obligations they have assumed (Romanian Civil Code: art. 1350 para. 1 and 2). Between the two forms of liability, contractual and delictual, there are numerous points of interference regarding their conditions, ways of realization, and purposes. Thus, the fundamental idea dominating both forms of liability is that of repairing a patrimonial damage, caused by the illicit and culpable acts of a certain person. Between the two forms of liability, there are no essential differences, their elements being the same: the existence of damage, the existence of an illicit act, the culpable commission of this act, and a causal relationship between the illicit act and the damage. However, the two types of liability also present a series of differences in terms of source, forms of fault, calculation of damages, etc. Two principles govern the right and, at the same time, the obligation to repair the damage: the principle of full compensation for the damage and the principle of restitution in kind of the damage (Pop, 2010: 189).