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Punitive Damages: On the Path to A Principled Approach
Jane P. Mallor,Barry S. Roberts +1 more
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This article is published in Hastings Law Journal.The article was published on 1999-01-01 and is currently open access. It has received 5 citations till now. The article focuses on the topics: Punitive damages.read more
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DissertationDOI
Punitive damages: the civil remedy in American law, lessons and caveats for continental Europe
Abstract: calculation of damage with a non-compensatory function is article 6:104 BW concerning the disgorgement of profit. This provision will be discussed in more detail below. These basic principles give a general understanding of the Dutch law of damages. As full compensation of loss is the general principle, compensation is in theory based on the loss of the victim and not on the behaviour of the wrongdoer. However, in practice the judge has some power – within the framework of article 6:98 BW concerning causation, article 6:101 BW on the wrongdoer’s own fault and article 6:106(1)(a) BW on immaterial loss – to take factors such as the degree of blameworthiness of the tortfeasor into account. As already mentioned in chapter two, taking into account the degree of blameworthiness gives a punitive character to civil damages awards. The higher the degree of fault, the more room a judge has to award larger damages and thus for deviating from the principle of full compensation. As will be explained below, this also applies to the assessment of immaterial damages. Another category of damages recognised in Dutch private law that allows deviation from the principle of full compensation is the contractual penalty clause. Other European legal systems in which the judge may take the fault of the wrongdoer into account when assessing an immaterial damages award are for example Austria, France, Germany, Greece, Italy, Norway, Portugal, and Switzerland. Some say that by taking the wrongdoer’s fault into account justice is done to the compensatory function of tort law and that this does not have a punitive purpose. On the other hand, authors who plead for graver sanctions in tort law often connect this to the degree of blameworthiness, as is for example done by Hartlief and Verheij. Shelton mentions the following in this respect: States that take fault into account in assessing moral damages can be said to inject a punitive element into the civil remedy. Although non-compensatory elements are the exception rather than the rule in the Dutch law of damages, the remedies that will be discussed below are not merely compensatory. 9.4.1.2 Immaterial Damages According to article 6:95 BW not only financial loss but also other loss is compensable, but they are compensable only as far as this is determined by law 70 Geerts et al. 2011, p. 61. 71 Verheij 1997, p. 78; Wissink & Van Boom 2001, p. 145. 72 Geerts et al. 2011, p. 62. 73 Wissink & Van Boom 2001, p. 145; Van Nispen 2003, p. 34. See on the contractual penalty clause in Dutch law section 9.4.1.4 below. 74 Shelton 2005, p. 37. 75 Geerts et al. 2011, p. 62. 76 Hartlief 2009c, p. 2253; Hartlief 2012b, p. 313; Verheij 2013b, p. 126. 77 Shelton 2005, p. 38. 78 Kortmann & Sieburgh 2009, p. 258.
Posted Content
The Punitive Damages Debate in Continental Europe: Food for Thought
TL;DR: Punitive damages, a civil sanction that is already widely discussed in American law, receives growing attention in continental Europe as mentioned in this paper, but it is not a civil remedy that has a future there.
Journal ArticleDOI
Punitive Damages: A European Criminal Law Approach. State Sanctions and the System of Guarantees
TL;DR: In this paper, the authors argue that punitive damages are compatible with the basic principles of continental European States, and especially with the principles of legality, proportionality and non bis in idem.
Journal Article
Punitive Damages: Cooper Industries v. Leatherman Tool Group : Will a Constitutional Objection to the Excessiveness of a Punitive Damages Award Save Defendants from Oklahoma's Punitive Damages Statute
The Current European Perspective on the Exequatur of U.S. Punitive Damages: Opening the Gate But Keeping a Guard
TL;DR: In this paper, the authors investigated whether, and to what extent, punitive damages judgments originating in the United States can be enforced against the assets of a defendant in a number of selected Member States of the EU.