Another instance of non-pecuniary loss being claimed by bodies with neither a soul to be damned nor a body to be kicked (a nice phrase commonly, but unfortunately wrongly, attributed to Lord Thurlow) comes in the ERIKA litigation in France. This arose out of the affair of the ERIKA, an elderly Maltese tanker which broke up in 1999 and deposited its sizeable cargo of crude oil on and around the French Atlantic coast. A large number of municipalities recovered tidy sums for "préjudice moral" in the resulting litigation before the Paris Tribunal de Grande Instance.

If you are interested, the decision can be found at http://www.lexinter.net/JPTXT4/JP2005/jugement%20erika.pdf

Andrew

To continue on the topic of emotional harm brought up by Alistair’s recent post, I thought I should mention a remarkable French case from the Tribunal correctionel of Avesnes in 1926 which I came across this morning.

 

The French Customs & Excise authority had caught a Mrs Desormaux trying to smuggle into Belgium a variety of butter that was statutorily banned from export (don’t ask me why). They drew up an official statement of the incriminated facts known as a procès-verbal: this is a public instrument to which a presumption of regularity attaches unless and until successfully challenged as being fraudulent. The suspected party immediately brought up such a challenge in court and the government counterclaimed for damages, alleging this was a baseless accusation on her part. The government (“l’Administration”) won.

 

What caught my attention is that the basis for the award of damages was said to be that the customs and excise agency had suffered a “moral loss” (préjudice moral) as a result of the malicious challenge to the instrument’s veracity brought against them. “Moral loss” can mean a variety of things, but in this context it transparently referred to emotional harm. The agency was rightfully upset.

 

Off the top of my head I cannot remember a case where a legal person openly recovered for emotional harm. I am familiar with cases where recovery, not only for distress but more generally for non-patrimonial losses, was denied to a non-physical person on the basis of their inability to experience emotions; and also with situations where such persons did recover damages – but in a roundabout way – for harms which, if they were human, would have been described as forms of mental distress. But I cannot think of cases where juristic persons explicitly recovered damages for something characterised as an emotional harm.

 

Interestingly, the note by Paul Esmein (one of France’s leading private lawyers from the first half of the C20th), argued for two incompatible ideas: (i) that the basis for such an award is that legal persons suffer through “physical persons whose interest they represent”; (ii) that the award is a private penalty, therefore wrong as a matter of principle in a legal system which (supposedly) recognises no such thing.

 

I’d be very interested in any authorities from other jurisdictions which recognised, explicitly or by way of necessary implication, that juridical persons can be emotionally wounded.

 

Eric

 

 

 

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Eric Descheemaeker (Dr)

Reader in European Private Law

 

Director, Edinburgh Centre for Private Law

Programme Director, LLM in Comparative and

   European Private Law (www.ed.ac.uk/pg/684) 

 

School of Law

University of Edinburgh

Old College, South Bridge

Edinburgh EH8 9YL (UK)

 

Tel: +44 (0)131 650 2054

Fax: +44 (0)131 650 2005

Email: eric.descheemaeker@ed.ac.uk  

http://www.law.ed.ac.uk/people/ericdescheemaeker 

 

 

 

 

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