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Moral Damages Under the Civil Law of Mexico. Are These Damages Equivalent to U.S

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Moral Damages Under the Civil Law of Mexico. Are These Damages Equivalent to U.S University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 4-1-2004 Moral Damages under the Civil Law of Mexico. Are These aD mages Equivalent to U.S. Punitive Damages? Jorge A. Vargas Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the Comparative and Foreign Law Commons Recommended Citation Jorge A. Vargas, Moral Damages under the Civil Law of Mexico. Are These Damages Equivalent to U.S. Punitive Damages?, 35 U. Miami Inter-Am. L. Rev. 183 (2004) Available at: http://repository.law.miami.edu/umialr/vol35/iss2/2 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. ARTICLES MORAL DAMAGES UNDER THE CIVIL LAW OF MEXICO. Are These Damages Equivalent to U.S. Punitive Damages? JORGE A. VARGAS* TABLE OF CONTENTS: I. INTRODUCTION ....................................... 186 II. CIVIL LIABILITY AND TORT LAW IN MEXICO ........... 189 A. Triad of Civil Liability Requirements ............ 192 1. Commission of Illicit Acts .................... 193 2. The Causation of Damage ................... 194 3. Causal Relationship between the Illicit Act and the Resulting Damage ................... 194 B. Mechanism to Quantify Damages and Losses under Mexican Law .............................. 195 1. How to Calculate Damages and Losses in Personal Injury Cases ....................... 196 2. Two Personal Injury Cases under Mexican L aw .......................................... 199 III. LEGISLATIVE HISTORY OF MORAL DAMAGES ........... 204 A. Two Types of "Moral Reparations" in the Federal Civil Code of 1928 ............................... 204 * Professor of Law, University of San Diego School of Law (since 1983). LL.B., summa cum laude, National Autonomous University of Mexico (UNAM), Mexico City; LL.M. and J.S.D. (Candidate), Yale Law School. The author was a guest lecturer on Mexican law at New York University School of Law, International Global Program in 1999, and a Visiting Professor at Stanford Law School in 1994. He is also the founder and Director of the Mexico-United States Law Institute, University of San Diego 1983-1987, and was awarded the academic distinction of University Professor 2002- 2003 by the University of San Diego. I wish to express my personal thanks to Daniel B. Rodriguez, Dean and Professor of Law at the University of San Diego School of Law for the generous Summer Research Award 2003 granted for the preparation of this work. I also wish to express my sincere thanks to USD students Tate Lounsberry, (JD Class 2005), Andrea Williams (JD Class 2005), Marissa Bejarano (JD Class 2004) and Adriana Cordoba (Class of 2005) for their excellent research work and for the preparation of the charts. I verify the accuracy of the Spanish language cites and all English translations and maintain a web site on Mexican law located at www.mexlaw.com. 184 INTER-AMERICAN LAW REVIEW [Vol. 35:2 1. Moral Reparation in the 1928 Civil Code .... 204 2. Moral Damages in the Civil Code of 1928 (Prior to the 1982 Amendment) .............. 206 a. Moral Reparation, Mexico City, 1938 ..... 207 b. Moral Reparation, 1942 .................. 207 c. Moral Reparation ........................ 208 B. The 1982 Legislative Bill of President De la Madrid .......................................... 209 1. Legal Rationales ............................. 209 2. Text of the Proposed Amendment ............ 211 3. Discussion of the Proposed Amendment by Congress ..................................... 212 4. Final Text of the Amendments as Published in the D. 0. of December 31, 1982 ........... 214 5. The Latest Amendments to the Civil Code in 1994 ......................................... 216 6. Spain's Organic Act of Civil Protection of 1982 ......................................... 217 IV. MoRAL DAMAGES IN THE MEXICAN DOCTRINE ......... 223 A. Manuel Borja Soriano ........................... 223 1. Comments on Moral Damages in General ....223 2. Comments on Article 1916 of the Federal Civil Code as Amended ...................... 225 B. Ernesto Gutidrrez y Gonzdlez .................... 226 1. Moral Damages in General .................. 226 C. Ignacio Galindo Garfias ......................... 227 1. Comments on Moral Damages ............... 227 D. Jorge Olivera Toro ............................... 228 1. Comments on Moral Damages ............... 228 V. MoRAL DAMAGES: A BRIEF COMPARATIVE LAW SURVEY ................................................ 230 A. European Countries .............................. 231 1. France ....................................... 231 2. Germ any ..................................... 232 3. Italy ......................................... 235 4. Spain ........................................ 236 5. Switzerland .................................. 238 VI. ANALYSIS OF DECISIONS RENDERED ON MORAL DAMAGES BY MEXICAN COURTS, INCLUDING THE SUPREME COURT, 1982-2003 ......................... 241 A. A Brief Explanation of Mexico's "Jurisprudencia" and "Ejecutorias". ............................... 241 2004] MORAL DAMAGES IN MEXICO 185 B. Three Kinds of Judicial Decisions on Moral Dam ages ......................................... 243 1. Old Jurisprudenciasand Ejecutorias, 1928- 1982 ......................................... 244 a. Moral Damage is Exclusively Reserved for Extra-Contractual Liability Cases ........ 245 b. Moral Reparation is Not Allowed in Objective Liability Cases ................. 246 c. Lack of Evidence of Material Damage Does Not Prevent the Judge from Granting a Moral Damage Indemnification in Favor of the Victim... 248 d. The Economic Capability of the Responsible Person Should be Taken into Account Only When the Amount of the "Moral Damage" is to be Determined .... 249 2. Only Four Jurisprudenciason Moral Damages, 1982-2003 ......................... 250 a. Cultural .................................. 251 b. Economic and Legal ...................... 252 c. Professional .............................. 252 d. First Jurisprudencia,1995: Moral Damages, necessary Elements ........... 253 e. Second Jurisprudencia,2000: Moral Damage Must be Proved in a Criminal Proceeding ............................... 254 f. Third Jurisprudencia,2000: Moral Damage and Indemnification in Criminal C ases .................................... 254 g. Fourth Jurisprudencia,2002: Moral Damage. Right to a Reparation in a Medical Malpractice Case ................ 255 3. Fifty-Two Relevant Ejecutorias on Moral Damages, 1982-2003 ......................... 256 a. Changes made by the 1982 Amendments ............................. 257 VII. CONCLUSIONS .......................................... 265 APPENDICES: Appendix One. Current Text of Articles 1916, 1916 Bis and 2116, Federal Civil Code (and Civil Code for the Federal District) ..................................... 269 186 INTER-AMERICAN LAW REVIEW [Vol. 35:2 Appendix Two. Moral Damages in Mexico's Federal District and the Thirty-One States ........................... 271 Appendix Three. Moral Damages in Selected Civil Codes of European Countries ................................. 276 Appendix Four. Moral Damages Decisions Rendered by the Supreme Court of Mexico ............................ 277 Appendix Five. Moral Damages Decisions Rendered by Mexican Federal Courts 1982-2003, Classified by Legal Areas ......................................... 282 I. INTRODUCTION Under Mexican Civil Law, successful lawsuits in tort law cases culminate with the awarding of an economic indemnification in favor of the victim (or the victim's heirs in wrongful death cases), as mandated by the Civil Code of the jurisdiction where the injury occurred.' Out of a total of 3,074 sections, Mexico's Civil Code includes only thirty-five sections that contain the basic prin- ciples governing tort law cases,2 known in Mexico as "extra-con- tractual liability cases."' During the first fifty years of the application of the Civil Code for the Federal District (1932-1982), the reparation of the dam- ages awarded by Mexican courts, at the election of the injured party, consisted of either the restoration of the damaged item to its previous condition, if possible, or in the payment of a liquidated amount legally consisting of both damages and losses.4 As defined 1. As a country, Mexico strongly adheres to the Lex loci delicti principle. This principle is closely associated with, and derives from, the "Principle of Limited Territoriality." The principle is enunciated in Article 12 of the Federal Civil Code (from which text has been reproduced verbatim by the civil codes of the thirty-one states which compose the Republic of Mexico as well as the Civil Code for the Federal District). Article 12 prescribes: "[MIexican laws apply to all persons within the Republic, as well as to acts and events which take place within its territory or under its jurisdiction, including those persons who submit themselves thereto, unless the law provides for the application of foreign law, or it is otherwise provided by treaties or conventions to which Mexico is a signatory party." CODIGO CIVIL PARA EL DISTRITO FEDERAL [C.C.D.F.] art. 12. 2. Id. at arts. 1910-1934; see also Liabilities from Illicit Acts (Obligaciones que Nacen de los Actos Iltcitos). 3. For an overview of the legal regime that Mexico applies to personal injury cases, see Jorge A. Vargas, Tort Law in Mexico,
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