Opinion: Moral Damage.


What is meant by moral damage?

 

ASD-Cancún

Written by: BL. Javier Villanueva

 

Dear customers and friends:

 

The word damage comes from the Latin damnum which means deterioration, reduction, destruction, offense or pain that is raised in a person. The doctrine sets three types of damage:

Property damage: the loss or affectation that suffers a person in their heritage.

Moral damage: the impact on the prestige and reputation of a person.

Physical Damage: illness or physical injury, produced by a third party, which brings as a consequence a temporary or permanent disability.

 

The Law defines the moral damage as the affectation that a person suffers in their feelings, emotions, beliefs, propriety, honor, reputation, private life, configuration and physical aspects, or in the consideration of him/herself that other people have. It shall be presumed that there was a moral damage when someone violates or lessens illegitimately the freedom or the physical or psychological integrity of other person.

 

The moral damage can come from a fact or an omission, which should be repaired by the responsible. Those who engage in any of the following behaviors will be required to cover the compensation for the moral damage caused:

 

I. To make public a fact true or false, which can cause dishonor, prejudice, exhibition or any damage to a physical or moral person.

II. Whoever accuses a third party of having made a crime, if this fact is false or if the accused person turns to be innocent.

III. Whoever presents a complaint or dispute slanderous, accusing an innocent or knowing that the person has not committed any crime.

IV. To the person who offends the honor, attacks the private life or the self-image of a person.

 

It is important to point out that the Law establishes that moral people are responsible for the damages caused by their legal representatives in the exercise of their functions and that, in case the damage has been produced by 2 or more people, the liability will be joint.

 

Otherwise, they are not obligated to repair the moral damage:

 

That who makes a faithful reproduction, as long as they cite the source of information from which it was obtained.

That who exercisea their rights to opinion, criticism, expression and information, in the terms established by the General Constitution of the Mexican Republic.

That who performs literary, artistic, historical, scientific or professional critics

That who performs adverse opinions in the fulfillment of a duty or exercising a right without offensive purposes.

 

To determine whether there was a moral damage it must be fully certified the wrongfulness of the conduct of the respondent and the damage caused to the victim. The damage may be tested directly through expert witnesses in psychology or by other expert opinions, or indirectly when the judge can infer, through the proven facts, the damage caused to the victims.

 

Once it is determinated the existence of the damage, the calculation of the financial compensation will depend on a subjective assessment of the judge, who shall fix the amount of the reparation of the damage, taking into account the rights violated, the degree of responsibility, the economic situation of the person responsible and the victim, as well as all other circumstances in the case. The Thesis number 2006880 sets the parameters of quantification of the moral damage and the factors that must be weighed. The most important points of this Thesis are the following:

 

The quantification of the moral damage can be classified according to their level of intensity between mild, medium or high.

The qualitative aspect of the moral damage will be measured according to: (i) the type of right or interest injured; and (ii) the existence of damage and its severity level.

The patrimonial or quantitative aspect will be measured taking into account: (i) the accrued expenses arising from the moral damage; and (ii) expenditure by accrue.

Of the responsible one should be taken into account: (i) their degree of responsibility; and (ii) their economic situation.

The judge, in weighing the elements of quantification prior identified, may point out particular circumstances relevant, as the case may be.

These parameters are only indicative and are intended to guide the actions of the judges.

 

The determination of the judge must include, along with the economic compensation, the obligation to rectify the information disseminated in the media where it has been published the original information. In the cases where the moral damage has affected the victim in his/her decorum, honor, reputation or consideration, an extract of the judgment must be published that adequately reflects the nature and scope of the same, through the media that the judge considers appropriate, with the same relevance that the original broadcast had had.

 

Finally, it is important to mention that the action to seek compensation for the moral damage caused should be exercised by the civil legal path and that the deadline for its exercise prescribes in two years, counted from the day on which the damage has been caused.

 

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