Abstract:
Bearing in mind the judgments recently given by the Portuguese Supreme Court, which have recognized the right to be compensated for loss of chance for the first time, this article sets out to discover the actual legal framework for this type of damage. In order to do so, the evolution of loss of chance within French and Italian law – the two mainland systems in which this damage has been generally accepted – will be analysed. This will be followed by a critical evaluation of the results accomplished. Dissatisfied with the traditional framework of loss of chance, alternative proposals will be sought, especially those formulated by some German scholars, given the proximity of Portuguese civil law to German civil law. The consequence is, on the one hand, the need to take into consideration the normative framing and the nature of the final damage for which the compensation for loss of chance is a substitute and, on the other hand, the need to include loss of chance, when qualified as an economic loss, in a system of civil liability with limited mobility and permeability as to value judgements.
Rui Cardona Ferreira, ‘The Loss of Chance in Civil Law Countries: A Comparative and Critical Analysis‘. 20 Maastricht Journal 1 (2013).
First posted 2013-06-06 08:13:37
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