Préjudice d’affection: how French law compensates for reflex damages

Reflective damage, a kind of indirect damage, originates from French jurisprudence, which, in some decisions of the end of the 19th century, it started to repair the prejudice d’affection (impairment of affection)[1], although it cannot be ignored that already in the year 1685 the Parlement of Paris granted financial compensation to a member of a family in mourning for the death of a loved one. According to Vernon Valentine Palmer, the practice existed long before the 19th century and jurists of the time were aware that their courts dealt with close to affection (loss of affection) as a reflex damage, in a way that the Romans would not have tolerated, given their interpretation that the human body was not estimable, and thus neither would the pain and suffering resulting from damage done to this body[2].

In a report on compensation for bodily harm, written in 2003, Yvonne Lambert-Faivre classifies the damage to ricochet victims into prejudice d’accompagnement (damage for the loss of a companion) and prejudice d’affection (affection impairment): the first would reflect the disturbance in the daily life of those who really share with the victim their painful survival from the harmful event to death, in a way that would be linked to the moral comfort of the affectionate presence dedicated to the direct victim; the second would be related to compensation for damage to affection in the case of the loss of a loved one[3].

It is precisely because of affection as a characterizing element of the reflex damage that French jurisprudence started to repair the prejudice d’affection (damage of affection), confirming its protagonism in the sense of the reparation of the reflex moral damage. According to Rafael Peteffi da Silva and Guilherme Henrique Lima Reinig, this jurisprudential tendency was confirmed by the Court of Cassation in 1923 and, years later, in 1931, the same Court limited liability to the verification of a parentage lien or d’alliance (kinship or alliance relationship) between the direct and indirect victims. In 1970, they clarify, the jurisprudential orientation became in the sense that any person who proved serious feelings of affection would be legitimated to invoke moral damages.[4]. Furthermore, on November 11, 1897, the Court of Nîmes recognized the possibility of repairing damages by ricochet in favor of family members of a fatal victim, considering the damage of a moral nature experienced by the relatives[5].

From a jurisprudential search with the Cour de Cassation (Court of Cassation), through its website, using the expression prejudice d’affection (damage of affection) included in quotation marks and without insertion of time limitation, two judgments were found: one dated February 5, 1969 (pourvoi No. 68-91,349) and another of March 1, 1973 (pourvoi No. 72-92,319). In the first case, the French Court of Cassation amended the judgment of the Court of Appeal of Lyon that had recognized the cohabitant of the deceased person the right to compensation for damage to affection, based, among other provisions, on article 1382 of the French Civil Code.[6]on the grounds, used by the Court of Cassation, that the nature of the bond would be precarious and unlawful, considering that the deceased person was married[7]. In the second article, from 1973, the Court affirmed the understanding that the law does not allow a distinction between the persons who claim compensation for the damage, whatever its nature, provided that there is a direct causal relationship with the offense, punctuating, at the time, , who are entitled to compensation those who suffer damage from affection arising from the same cause[8].

The position taken by the Court in this second judgment, later adopted in other judgments[9], translates the path taken by French jurisprudence. For Otavio Luiz Rodrigues Jr. and Rafael Peteffi da Silva, this path encompasses three stages: the first was more permissive in establishing an extensive list of legitimate assets to claim reparation, given the openness of the French system — or its atypical nature — in relation to civil liability and the general clause contained in the in article 1382 of the French Civil Code of 1804, while the second was more restrictive, as it limited reparation and carefully selected the legitimate ones. The third stage, finally, eased barriers insofar as it was assumed that people who had a parentage lien or d’alliance (kinship or alliance)considering the absence of restriction contained in the French Civil Code[10]. In case Dangereuxjudged in 1970, for example, compensation was granted to a person who had a direct affective bond with the victim, even without a marital relationship[11].

Currently, French jurisprudence assumes the legitimacy of the children and the non-separated spouse, attributing to other relatives and people outside the family nucleus of the direct victim the burden of proving more solidly the damage suffered in order to be entitled to compensation.[12]. In this sense, the opening of jurisprudence regarding the legitimacy to request compensation is susceptible to criticism: it is possible, at least hypothetically, to cause damage, or even dissatisfaction or legal uncertainty, to the people closest to the direct victim of the harmful event, considering the tendency to recognize the right to reparation to people who are more emotionally distant. This openness, if excessive, can lead to a state of uncertainty and, therefore, to legal instability.

In this particular aspect, it is curious the position of French jurisprudence with regard to the reparation arising from the prejudice d’affection (impairment of affection) when the victim by ricochet is a friend of the direct victim. Notwithstanding that there is no legal obstacle to compensation, jurisprudence has been authorizing it in cases where the real emotional bond or the presence of the friend at the time of causing the damage to the direct victim is evidenced, especially when this damage results in the death.[13].

Let us return, in conclusion, to the possibility of criticizing the opening of French jurisprudence with regard to indemnifiable hypotheses: there is a risk, at least a prioriin misinterpretations regarding the effectively indemnifiable damages, considering the attribution to civil liability of a function that is not its responsibility. Ultimately, the conceptual stability of civil liability can be jeopardized, maximizing the risk of legal uncertainty. Legal concepts, according to Judith Martins-Costa, although flexible and changeable, they must be identifiable, so as not to correspond to empty labels to be filled with any content[14].

* This column is produced by members and guests of the Contemporary Civil Law Research Network (USP, Humboldt-Berlin, Coimbra, Lisbon, Porto, Roma II-Tor Vergata, Girona, UFMG, UFPR, UFRGS, UFSC, UFPE, UFF, UFC, UFMT, UFBA, UFRJ and UFAM).

Júlia d’Alge Mont’Alverne Barreto is a doctoral candidate in Civil Law (University of São Paulo), a Master’s in Constitutional Law (University of Fortaleza) and a lawyer at Braga, Lincoln e Seixas Advogados.

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