Material losses and moral damages

a contribution from behavioral law and economics

Abstract

What are the reasons to provide compensation for moral damages in cases of deprivation of property? Jurisprudence and doctrine have argued in favor of this provision mainly from the idea of the full compensation aim of civil liability.
In some jurisdictions, moral damage repair for material losses has been provided expressly by the legal system. In other cases, even without a specific legal norm, this form of compensation has been awarded basing judgments from concepts that appear in standards that originally regulate other situations, or in general principles.
However, both judges and jurists proceed very cautiously in this area, both for a fear that widespread acceptance of compensation for moral damages can create more negative than positive consequences in the legal system.
This paper seeks to add one element in the analysis, from the theory known as Behavioral Law and Economics. The purpose is to show a contribution from a relatively new discipline that is not widespread in this latitudes. This contribution, although very small, suggests the desirability of considering the progress of other disciplines in solving the problems that arise to the jurist.