What is moral damages in Mexico and when can you claim them in court?

Surely many of us have heard the concept of "Moral Damage", according to which and in general terms, a person who suffers a certain type of affectation could claim from the person who caused said affectation, reparation of the damage and/or compensation. -generally of a pecuniary nature-; but what is it?

Article 1916 of the Federal Civil Code, moral damage is understood as: “…the impact a person suffers on their feelings, affections, beliefs, decorum, honor, reputation, private life, physical makeup and appearance, or on the way others regard them. Moral damage shall be presumed when the freedom or physical or psychological integrity of a person is unlawfully violated or impaired…”.

Thus, Mexican law establishes that anyone who causes moral damage is obligated to compensate it through monetary compensation, regardless of whether material damage was caused, both in contractual and extracontractual liability.

How is the amount of compensation determined?

The aforementioned regulatory provision establishes that the Judges must determine it, taking into account the following elements:

• The rights violated
• The degree of responsibility
• The economic situation of the person responsible and that of the victim
• Other circumstances of the case

The Supreme Court of Justice of Mexico has issued important precedents on moral damages and the right to fair compensation in Mexico. These criteria have been fundamental in ensuring adequate reparation for the damages caused.[1], in the case of actions for moral damage and its reparation in accordance with the human right to fair compensation.

According to national jurisprudence and the criteria of the Inter-American Court of Human Rights, compensation seeks, to the extent possible, to eliminate the consequences of the wrongful act and restore the situation that would have existed if the harm had not been committed. If this is not feasible, fair compensation must be granted, without implying a gain for the victim, but rather adequate restitution.[2].

In general terms and in accordance with national legislation and jurisprudence, the quantification parameters have been established, as well as how they should be weighted to determine the amount of the respective compensation:

1. Victim-related factors:

• Emotional impact: Determined through psychological assessments.
• Economic consequences: Expenses arising from the damage, such as medical treatment or therapy.

• Factors related to the person responsible:

• Degree of liability: The more serious the conduct, the greater the potential compensation.
• Economic situation: It is taken into account to determine a fair and proportional amount.

In this regard, the Supreme Court of Justice of the Nation has held that modern tort law must primarily address the nature and extent of the harm to the victims, not the perpetrators. The harm caused will determine the nature and amount of compensation. Reparations cannot entail enrichment or impoverishment for the victim or their successors, since the liability is not intended to be excessive.

Under this scenario, the elements that, according to the law and judicial criteria, must be proven for the admissibility of an action of this nature are: (i) the existence of an unlawful act; (ii) the generation of damage or affectation, in accordance with the provisions of article 1916 of the Federal Civil Code -and other regulatory provisions-; and, (iii) the existence of a causal link between the first and second elements.

In this order of ideas and the clearest cases where a right to claim compensation for moral damage can be created, they can derive from illegal acts that result in the death of people, but also -as an example- for behaviors such as:

1. Defamation, slander and libel.
2. Violation of the right to privacy.
3. Breach of contracts or employment relationships.
4. Discriminatory acts.
5. Harassment and psychological violence.
6. Unauthorized use of image or name.

[1] In this regard and for better reference, see the following note published on the Internet: https://arturozaldivar.com/sentencias/mayan-palace-danos-punitivos-dano-moral-indemnizacion/, relating to a fundamental case for the understanding of moral damages in Mexico, linked to a sentence decreed against a prestigious hotel chain, for the death of a person in one of its hotels.

[2] See the jurisprudence issued by the Supreme Court of Justice of the Nation, whose heading reads: “Fundamental right to full reparation or fair compensation. Its concept and scope.”.