Comparing moral damages principles in mixed jurisdictions

Abstract

The notion of compensation for moral damages in Malta has always been one of great difficulty. As seen through in various case-law, the uncertainty and limitations imposed on our courts have given rise to a lot of criticism towards our Law on Delictual liability. Prior to the amendments of 2018 to Article 1045 of the Maltese Civil Code, courts did in fact in some cases accept the compensation of moral damages by referring to it indirectly as an extension of existing laws. However, Acts XIII and XXXII of 2018 put a halt to such compensation by limiting the courts’ discretion to compensating for moral damages only in cases arising from a criminal offence, as well as putting a capping to such compensation. Therefore, in this research, by noticing that the amendments made our law inferior to other similar systems, an analysis of two other very similar mixed legal systems is made, namely Louisiana and Quebec, as well as an analysis of French law as it is the basis of all three legal systems – creating a comparative analysis and pinpointing what differs between France, Louisiana and Quebec, and Malta; and therefore, trying to come up with solutions and suggestions as to what can be done for our law to be in line with the present needs of society. Having said that, considering that the amendments done to Maltese Law are very recent, another immediate change to the law seems to be too much too soon as it is still interesting to see in which direction our case-law will go with the new limitations. Nonetheless, this study aims to clearly indicate that the way our recent law is going, particularly when compared to other similar mixed legal systems, is not the direction desired both by courts and by society at large, and therefore, a lookout should be kept regarding moral damages as influence from such mentioned mixed legal systems may be worthy as a way forward.