372 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
372
pecuniary to so-called moral or psychological damages. For a very long time,
judges granted compensation for material and economic injuries, but not
for pain and suffering. They felt that awarding the latter kind of redress, as
opposed to the former, lacked support in the Civil Code and would enable
them to exercise unbound and impermissible discretion. In some countries,
this attitude changed only upon almost unanimous scholarly condemnation
and upon an amendment to the Code, the Constitution, or both.
107
In order to award punitive damages in Latin America or in
Continental Europe, a tribunal would also have to disregard the equally
deep-seated conviction that a civil remedy may not operate as punishment.
Actually, this widespread persuasion has hindered the development of any
significant support, either among scholars or among lawmakers, for the
adoption of this kind of reparation. In exceptional cases, Latin American
and Continental European jurisdictions sanction not punitive damages
generally, but rather relief that transcends compensation and that appears
to have a punitive component. The legal systems that take this approach do
so, occasionally, in areas like consumer-protection.
108
In the relevant cases,
they usually authorize the adjudicator to make the award under limited
circumstances and under specific guidelines. She may not generally pass on
the reprehensibility of the defendant’s conduct and assess a commensurate
penalty, as with punitive damages in the United States.
Some civil-law tribunals, like the German Supreme Court, have even
gone so far as to declare punitive damages inconsistent with the public order
and to decline to execute foreign judgments that include such a remedy.
109
The
2005 Hague Convention on Choice-of-Court Agreements unambiguously
authorizes such refusal: “Recognition or enforcement of a judgment may be
refused, if, and to the extent that, the judgment awards damages, including
exemplary or punitive damages, that do not compensate a party for actual loss
or harm suffered.”
110
Similarly, the European Union Regulation 864/2007,
on the Law Applicable to Non-Contractual Obligations, allows member
107
See generally
Miguel Reale,
Moral Damages in Brazilian Law
,
in
A P
anorama
of
B
razilian
L
aw
121 (Jacob Dolinger &
Keith Rosenn eds., 1992) (describing the Brazilian judiciary’s resistance to moral damages despite scholarly, codified, and
constitutional support for such a remedy).
108
See, e.g.
, L. 24.240 (Consumer Defense Act) (Arg.) (1993), art. 52
bis
(“The judge may impose, at the request and in
favor of the consumer, a civil fine, which will vary depending on the gravity of . . . the case, on providers who fail to meet
their legal or contractual duties toward consumers. . . . The civil fine may not exceed” five (5) million
pesos
.).
109
See, e.g.
, BGHZ 118, 312 (343 f.) (Supr. Ct.) (Germany) (1992) (summarized in Peter Hay,
The Recognition and Enforcement
of American Money-Judgments in Germany: The 1992 Decision of the German Supreme Court
, 40
A
m
. J. C
omp
. L.
729, 730-31 (1992)).
110 Hague Convention on Choice of Court Agreements, June 30, 2005, 44 I.L.M. 1294, art. 11(1).