Objectivization of moral damage

Abstract

Moral (non-patrimonial) damage in Serbian law includes physical and psychological pain and suffering, and fear of sufficient duration and intensity. This is a purely subjective concept of moral damage: the mere infringement of non-patrimonial rights, or violation of personal goods as objects of these rights, does not constitute moral damage, unless they caused the plaintiff?s physical or psychological pain, or fear, and disturbed his or her mental equilibrium. Objectivization of moral damage is a change in this paradigm, towards the understanding of moral damage as an abstract infringement of a non-patrimonial right of the injured party, irrespective of any pain or fear caused by such infringement. Moral damage exists if personal (non-patrimonial) right, or personal good, or legally protected personal interest is violated, even if the injured party did not suffer any pain or fear due to this violation. Since 2005, Croatian legislator has abandoned the long-standing subjective concept of non-patrimonial damage, and reconceptualized it as an abstract violation of personal rights, including personal rights of legal entities. The Commission appointed to draft the new Civil Code of Serbia considers several modes of either partial or complete objectivization of the concept of moral damage in the prospective codification. In this paper the author examines the reasons for such change, and offers arguments in support of the idea that Serbian legislator should decide on a mixed conception of non-patrimonial damage, that is, to adhere to the existing concept of non-patrimonial damage, but also to allow for a violation of non-patrimonial goods or legally protected interests to be recognized as a type of moral damage, regardless of any psychological suffering coming out of such infringement.