Consideraţii teoretice şi practice cu privire la daunele morale în cazul dreptului la despăgubiri prevăzut de art. 388 din Codul civil

Rezumat

The right to compensation, as a novelty element in the Civil Code of 2011, generated a special interest in the doctrine, which rather inspired from the French case law. Subsequently, it began to take shape as well, a fairly original practice of the Romanian courts, even if the source of inspiration of art. 388 of the Romanian Civil Code is art. 266 of the French Civil Code.

However, from the perspective of moral prejudices, we notice a dual character of the right to compensation: as a potestative right, it comes closer to the rights of personality, moving, like a chameleon, after invocation, its action into the objective scope of the tort liability, with the characteristics of a civil subjective right of claim. If we refer to the contractarian theory and to the liberalization of dissolution of marriage from the perspective of the new Code of Civil Procedure, but also of the Civil Code, we cannot fail to remember the charming theory of the damages paid for abusive termination of the contract‑marriage. Nevertheless, it is universally accepted that the payment of non material damages, as a right to compensation within the divorce proceedings, is based on the tort liability, with its specificity, when it is relied on at the same time with the divorce, and with the rules of common law, when its establishment is required outside the divorce proceedings.

Keywords: non material damages; divorce; compensation; fault; tort liability; spouses.