Should moral damages extend beyond constitutional cases?

Abstract

The journey towards incorporating moral damages into Maltese Civil Law initiated decades ago, from the minute a member of the judiciary took into consideration the moral element, looking beyond the limited contents of Article 1045. ‘Bexxaqna l-bieb u għalkemm ma ftaħnihx beraħ…Din hija innovazzjoni interessanti...’ What remains is setting these damages in stone, a desired yet arduous task as few wish to deal with the ramifications on opening this Pandora’s box. It is without a doubt that the incorporation of moral damages in the Civil Code is a political decision; indeed the legislator is a politician. Any attempts at legal reform by means of jurisprudence will almost certainly take a very long time to achieve. Hence, despite the judicial powers granted to the members of the judiciary to declare whether moral damages have been proven, the right to moral damages finds its foundations in legislation. The Civil Courts are perfectly competent to find responsibility on the basis of moral damage, but nothing more. Prior to any further elaboration, the wording of my title must be clarified: moral damages are already granted and explicitly provided in the provisions of certain areas of Civil Law and hence are not only of constitutional concern. This legal work focuses on the incorporation of moral damages beyond these limited instances.