THE COMPENSATION OF PUNITIVE DAMAGES IN THE AIR TRANSPORT
"As regards the quantification of compensation for moral damages, the Supreme Court has taught that" our civil code does not provide for compensation for moral damages, while Article 1107 requires compensation for 'all' and has been a civil appellate law, for violation of Articles 1101 and 1106 of the Civil Code has been developed continuous and progressive teaching about its origin and from former Case 12/06/1912 and December 19, 1949, stating that while his opinion can not be obtained from direct and objective evidence, not because it is tied to court and are legally impossible to fix its quantification, where have indeed Thread (03/06/1991 Sentencing; 11/03/1995; 21/10/1996 and 19-10 - 2000) and such effects should considered and weighed the circumstances in each case, for what it is precisely not to carry out repairs to the heritage, but to contribute in some way to cope with the pain and anguish of those injured by the unfair act , abusive or unlawful use of another "(Judgement of 9 December 2003) that" the legal assessment of moral damages is clear in its magnitude and severity, economic valuation, as in all moral damage is difficult, so it is reasonable is the amount claimed, in view of the entity causing the damage (if Under English law punitive damages would be much higher) and the suffering of the victims "(Judgement of 17 February 2005), and that" the concept of moral damage has already been developed in previous lines, their compensation is a 'dead issue and resolved in the affirmative "(in the words of the doctrine) and admitted jurisprudencialmente, from the sentence of 6 December 1912 that first introduced compensation moral damage; its assessment and quantification is said to be arbitrary, but can also be argued that any compensation, except where can be very specific, and, of course, the difficulty in determining not to influence the prosperity of a just claim ..... this Court must determine discretionary, not arbitrary, the amount of compensation and, in the light ...., fixed time "(Judgement of 28 March 2005)", and 26-Jan-06, and 27 -June-05.
Al elucidate whether it should be recognized compensation for moral damages, is to emphasize that once reasoned that does not apply to limit the quantities contained in Article 22 of the Warsaw Convention, is the crucial to the provisions of Article 1101 of Civil Code in the sense that the contractor in compliance obligations commits fraud, negligence or default, or otherwise violates the terms of those, it is subject to injury damages, including, in general, are incardinated moral damages, without any appreciable prejudice to any that they are compensated in the field of Law 21/1995 of 6 July on package holidays , especially when, as is explicit in its explanatory memorandum, the law was aimed at the incorporation into English law Council Directive of the European Communities 90/314/EEC of 13 June 1990 on package travel, package holidays and tours, and the Court of Justice of the European Community of 12 March 2002 stated that "Article 5 of the Directive to be interpreted as meaning that, in principle, on consumers a right to compensation for material damage resulting from failure or improper performance of the services constituting a package.
In order to prove the reality of moral damage for which compensation claims, it is recalled that the Supreme Court has held that "the situation that can be basic in a compensable injury is a moral suffering, grief or mental condition (Sentences May 22, 1995, October 19, 1996, 27 September 1999).
The recent Court has referred to various situations, among which include the impact or psychic or spiritual suffering (S. July 23, 1990), impotence, anxiety, anxiety, distress (S. July 6, 1990), anxiety, as psychic feeling of anxiety, grief, fear and foreboding of uncertainty (S. May 22, 1995), anxiety disorder, emotional impact, resulting uncertainty (S. January 27, 1998), impact, grief or mental suffering (S. July 12 1999) (statement of May 31, 2000) that "on that line can be understood as moral damages in all that negative integration decrease suffering an injured victim and immission is a disturbing personality that, by nature, include, in property damage because they are apprehended by his own characterization and, therefore, be translated into the 'quantum' economic, without the need to instantiate the concept (...).
"As regards the quantification of compensation for moral damages, the Supreme Court has taught that" our civil code does not provide for compensation for moral damages, while Article 1107 requires compensation for 'all' and has been a civil appellate law, for violation of Articles 1101 and 1106 of the Civil Code has been developed continuous and progressive teaching about its origin and from former Case 12/06/1912 and December 19, 1949, stating that while his opinion can not be obtained from direct and objective evidence, not because it is tied to court and are legally impossible to fix its quantification, where have indeed Thread (03/06/1991 Sentencing; 11/03/1995; 21/10/1996 and 19-10 - 2000) and such effects should considered and weighed the circumstances in each case, for what it is precisely not to carry out repairs to the heritage, but to contribute in some way to cope with the pain and anguish of those injured by the unfair act , abusive or unlawful use of another "(Judgement of 9 December 2003) that" the legal assessment of moral damages is clear in its magnitude and severity, economic valuation, as in all moral damage is difficult, so it is reasonable is the amount claimed, in view of the entity causing the damage (if Under English law punitive damages would be much higher) and the suffering of the victims "(Judgement of 17 February 2005), and that" the concept of moral damage has already been developed in previous lines, their compensation is a 'dead issue and resolved in the affirmative "(in the words of the doctrine) and admitted jurisprudencialmente, from the sentence of 6 December 1912 that first introduced compensation moral damage; its assessment and quantification is said to be arbitrary, but can also be argued that any compensation, except where can be very specific, and, of course, the difficulty in determining not to influence the prosperity of a just claim ..... this Court must determine discretionary, not arbitrary, the amount of compensation and, in the light ...., fixed time "(Judgement of 28 March 2005)", and 26-Jan-06, and 27 -June-05.
Al elucidate whether it should be recognized compensation for moral damages, is to emphasize that once reasoned that does not apply to limit the quantities contained in Article 22 of the Warsaw Convention, is the crucial to the provisions of Article 1101 of Civil Code in the sense that the contractor in compliance obligations commits fraud, negligence or default, or otherwise violates the terms of those, it is subject to injury damages, including, in general, are incardinated moral damages, without any appreciable prejudice to any that they are compensated in the field of Law 21/1995 of 6 July on package holidays , especially when, as is explicit in its explanatory memorandum, the law was aimed at the incorporation into English law Council Directive of the European Communities 90/314/EEC of 13 June 1990 on package travel, package holidays and tours, and the Court of Justice of the European Community of 12 March 2002 stated that "Article 5 of the Directive to be interpreted as meaning that, in principle, on consumers a right to compensation for material damage resulting from failure or improper performance of the services constituting a package.
In order to prove the reality of moral damage for which compensation claims, it is recalled that the Supreme Court has held that "the situation that can be basic in a compensable injury is a moral suffering, grief or mental condition (Sentences May 22, 1995, October 19, 1996, 27 September 1999).
The recent Court has referred to various situations, among which include the impact or psychic or spiritual suffering (S. July 23, 1990), impotence, anxiety, anxiety, distress (S. July 6, 1990), anxiety, as psychic feeling of anxiety, grief, fear and foreboding of uncertainty (S. May 22, 1995), anxiety disorder, emotional impact, resulting uncertainty (S. January 27, 1998), impact, grief or mental suffering (S. July 12 1999) (statement of May 31, 2000) that "on that line can be understood as moral damages in all that negative integration decrease suffering an injured victim and immission is a disturbing personality that, by nature, include, in property damage because they are apprehended by his own characterization and, therefore, be translated into the 'quantum' economic, without the need to instantiate the concept (...).
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In terms of positive integration, it must be said, following this case-that moral damages must be understood categories nested in the area of \u200b\u200bpersonal privacy, and that ontology can not emerge outside , although it appears possible that, given the occurrence of events (in fact, the wrongful conduct of the author) can capture the essence of the moral damage, even by empirical monitoring of the reactions, volitions, feelings or instincts that any person may have to be a victim of transgressive conduct subsequent foundation of its claim for moral damages (...).
As for the notorious difficulty in quantifying compensation for this concept , STS dated May 31, 2000 says that "the general doctrine on the burden of proof of harm has certain peculiarities, the variety circumstances, situations or how they can present the material damage. When the moral damage emanating from material damage or due to some factual data, it must prove the reality that serves as support, but when depends on value judgments derived from the reality in question, or when a situation of notoriety, no activity would require a concrete proof. "
The STS of 19 October 2000 cites the July 27, 1994, 3 November 1995, October 21, 1996 and December 12 December 1912, as a starting point for all , says that "settled case law and long standing of this Court is considering compensation for moral damages, recognizing that his assessment is not available from an objective test, but not tied to the Courts of Justice and legally impossible to fix their quantification, whose effect must be taken into account and evaluate the circumstances in each case. "as in those of December 4, 2008, July 12, 2007:
" On the compensation for moral damages, taking into special consideration the type and duration of the package agreed upon, the many activities and excursions planned, the frustration of expectations from the third day (the first invested in transfers), discomfort, restlessness, anxiety and conditions that may generate any traveler frustration, increased as the days go by without locating the suitcase, as is relevant the delay. And attention to the value or amount of flights and cruise separately (f. 17 to 22 cars), and enjoyed day or not. ".
Indeed, the jurisprudence of TS has moved from the admissibility of compensation for moral damages arising from breach of contract as "doubtful" (Supreme Court decision of December 16, 1986) to admitting that "both material damage and damage to property may come from the same contract as the guilt of sin tort " (Supreme Court decision of May 22, 1995) and that" the damages, whose compensation requires all culpable breach of contract are not only material or economic, in its dual mode of damage and loss of earnings (Article 1106 Civil Code), but also the moral damage arising directly from that "(Supreme Court decision of November 11, 1997).
damage derives from the same moral failure because, as has been reiterated by the Supreme Court, it would mean accepting that the contract operates in a vacuum. Any breach of contract per se may involve injury or damage, a frustration with the economy the part, material or moral interest, otherwise this would be to argue that the vicissitudes of the contract, in particular, contraventions The parties shall not have any impact, thus contradicting the normative reality of the binding force of contract and its consequences (Supreme Court decisions of 30 September 1989, October 22, 1993, December 31, 1998, March 16, 1999 and June 18, 2004).
In one case, the court tested the TS ineptitude and anxiety of both actors, individual return to Spain in widely separated dates, and the total disregard to Mrs. Florence, until 6-March, which allows the determination of compensation amount in moral damages, as requested by the respondents (2,000 .- Euros).
As for the notorious difficulty in quantifying compensation for this concept , STS dated May 31, 2000 says that "the general doctrine on the burden of proof of harm has certain peculiarities, the variety circumstances, situations or how they can present the material damage. When the moral damage emanating from material damage or due to some factual data, it must prove the reality that serves as support, but when depends on value judgments derived from the reality in question, or when a situation of notoriety, no activity would require a concrete proof. "
The STS of 19 October 2000 cites the July 27, 1994, 3 November 1995, October 21, 1996 and December 12 December 1912, as a starting point for all , says that "settled case law and long standing of this Court is considering compensation for moral damages, recognizing that his assessment is not available from an objective test, but not tied to the Courts of Justice and legally impossible to fix their quantification, whose effect must be taken into account and evaluate the circumstances in each case. "as in those of December 4, 2008, July 12, 2007:
" On the compensation for moral damages, taking into special consideration the type and duration of the package agreed upon, the many activities and excursions planned, the frustration of expectations from the third day (the first invested in transfers), discomfort, restlessness, anxiety and conditions that may generate any traveler frustration, increased as the days go by without locating the suitcase, as is relevant the delay. And attention to the value or amount of flights and cruise separately (f. 17 to 22 cars), and enjoyed day or not. ".
Indeed, the jurisprudence of TS has moved from the admissibility of compensation for moral damages arising from breach of contract as "doubtful" (Supreme Court decision of December 16, 1986) to admitting that "both material damage and damage to property may come from the same contract as the guilt of sin tort " (Supreme Court decision of May 22, 1995) and that" the damages, whose compensation requires all culpable breach of contract are not only material or economic, in its dual mode of damage and loss of earnings (Article 1106 Civil Code), but also the moral damage arising directly from that "(Supreme Court decision of November 11, 1997).
damage derives from the same moral failure because, as has been reiterated by the Supreme Court, it would mean accepting that the contract operates in a vacuum. Any breach of contract per se may involve injury or damage, a frustration with the economy the part, material or moral interest, otherwise this would be to argue that the vicissitudes of the contract, in particular, contraventions The parties shall not have any impact, thus contradicting the normative reality of the binding force of contract and its consequences (Supreme Court decisions of 30 September 1989, October 22, 1993, December 31, 1998, March 16, 1999 and June 18, 2004).
In one case, the court tested the TS ineptitude and anxiety of both actors, individual return to Spain in widely separated dates, and the total disregard to Mrs. Florence, until 6-March, which allows the determination of compensation amount in moral damages, as requested by the respondents (2,000 .- Euros).
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