«Punitive damages» is a concept alien to European Law systems. I remember how difficult it was trying to find an equivalent that I could easily understand, since there is no such a thing as punitive damages in Spanish Law. Punitive damages were a discovery to me when I went thru the subject of Tort Law. Nowadays, punitive damages still do not exist in Spanish Law, yet something new is going on with our Tort Law, for they may not exist de iure, but they are awarded de facto -although in a subtle way.
Traditionally, the Spanish Tort Law aknowledges three kinds of damages:
- The damage itself («daño emergente»): I’ve got a van which is hit by your car, and its repairing in the garage costs 5,000 $. Those five thousand dollars are «daño emergente», the direct cost of the damage.
- The ceasing income (or ceasing earnings, ceasing profits, ceasing benefits… whichever concept you may prefer: «lucro cesante»): That van happens to be a tool in my business. I’ve got a small transportation enterprise, and the week my van has to spend in the garage costs me 10,000 $ due to all the orders I am unable to carry out. All that money I cease from earning, that’s «lucro cesante».
- The moral damages («daño moral») are not difficult to understand, since they exist as a concept everywhere. You cause a pain, suffering, stress (etc.) in me, now you pay for all that pain I’ve had to go thru. Curiously, these type of damages are going to be the “back door” the Spanish courts are going to use to award punitive damages in a de facto manner. Let’s take a look at it.
Punitive damages are unconstitutional in Spain, since technically they are damages awarded for something that you have not done yet. The main purpose of punitive damages is to prevent the defendant from doing the same (a tort) in the future. That is why American courts may award 10,000 $ in moral damages, and then immediately 5 million dollars in punitive damages. But in Spanish Law, that attitude of punishing somebody for something they may (or may not!) do in the future, in order to prevent them from even thinking of doing it, is completely unconstitutional. Then, how are Spanish courts starting to award de facto punitive damages? The answer is: thru moral damages.
Contrary to the American standard, which is awarding low moral damages in comparison to high -sometimes, extremely high- punitive damages, the Spanish courts are starting to use the moral damages as a way to introduce punitive damages in a legal system where those do not exist. Therefore, a Spanish court may award higher sums of money in moral damages than their American fellows. I have recently aknowledged a ruling by the Catalan Supreme Court where two parents who had had teir custody removed by the Catalan Government (which was then granted to a new couple, becoming the new legal parents, and the custody temporarily removed hence turning into definitive custody) are awarded 980,000 € in moral damages. The amount is so unusual in our legal system, that some distinguished scholars (vid. Esther Farnós Amorós, Cuadernos Civitas de Jurisprudencia Civil, May-August 2011) have pointed out the evident punitive purpose in the Catalan Supreme Court ruling. In some excerpts of the ruling, the will of the court is highly noticeable: to punish for what has happened AND to get the Catalan Government to think it twice before ever doing the same in the future.