375 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
375
systems universally reject the notion that the judiciary may punish
defendants in controversies under the Civil Code. In fact, the remedy in
question appears to find clear support only in the United States and in
a few other common-law jurisdictions.
127
Therefore, no principle with the
necessary degree of universality would sustain an award of punitive damages.
If anything, the general practice throughout the world points in the opposite
direction, namely, in that of a proscription of this kind of relief.
Finally, one may not persuasively assimilate punitive to moral
damages. The latter, as previously pointed out, address mainly psychological
and reputational injuries and, as opposed to the former, do not aim at
punishment, but rather at compensation. They require that the plaintiff
specifically request for such relief,
128
as well as that the adjudicator assess and
justify the sum awarded.
129
A condemnation of a defendant to pay a penalty
on grounds of allegedly reprehensible conduct would not seem to qualify as
an award of moral damages.
D. Wrap-Up
The civil law of Ecuador, like that of other countries in Latin
America and Central Europe, forbids the retroactive application of laws
and the imposition of punitive damages. These prohibitions play an
important role in the legal system and call for strict adherence. In this
area, the civil-law tradition evinces an impressive amount of congruence
despite the variance in the details.
VI. Conclusion
Parts II and III meditated upon, respectively, the notion of the civil-
law tradition and that of codification. Thereafter, Part IV investigated the
mostly common take on contractual interpretation and on third-party
127 The U.S. Supreme Court has endorsed the constitutional validity of punitive damages, while imposing strict due-
process limitations.
See, e.g
., Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008);
Philip Morris USA v. Williams,
549 U.S. 346
(2007);
State Farm Mut. Automobile Ins. Co. v. Campbell,
538 U.S. 408 (2003);
BMW of North America, Inc. v. Gore,
517 U.S.
559 (1996).
Cf
. Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362 (Sup. Ct.) (Canada) (“Punitive damages are
restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their
own . . . . Courts should only resort to punitive damages in exceptional cases . . . .); Rookes v. Barnard, 1964 A.C. 1129,
1225-28 (H.L.) (England) (1964) (L. Devlin) (An award of “punitive or exemplary damages” may lie (1) when “oppres-
sive, arbitrary or unconstitutional action by the servants of the government” has taken place; (2) when “the defendant’s
conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the
plaintiff ”; or (3) when “exemplary damages are expressly [authorized] by statute.”).
128
See
C
d
. C
iv
.
(Ecuad.) (2005), art. 2233.
129
See
id.
art. 279.