The transmissibility to heirs of moral damages arising from permanent injuries of a prematurely deceased victim (a not so «stale controversy» that has not been definitively solved by the doctrine)

Abstract

This paper aims to analyze the jurisprudential and doctrinal controversy around the transmissibility or non-transmissibility to heirs of the compensation of moral damages arising from permanent injuries inferred to someone who dies earlier than expected. It is still an unresolved controversy, sometimes even underestimated by the doctrine and jurisprudence, despite having today a clear and steady interest, judging by the upward progression of moral damages claims arising from such injuries, both against insurance companies and Public Administrations. There are some important technical and dogmatic issues underlying such controversy (eg: May this credit be considered a patrimonial one despite the genuinely non-patrimonial nature of the right that gives rise to it? Does not this transmissibility break the essentially compensatory character of damages in our civil liability system?), and its resolution is of interest precisely to those who usually face the payment of damages, because the interpretation and application of both the Scale of bodily injuries and, in general, the Annex to LRCSVM made by jurisprudence -ratified by an important sector of the doctrine, is causing, in many cases, an overcompensation of damages.

The real reason of the controversy derives from the widespread and indiscriminate use, as the only possible technique for the compensation of damages, consisting of a lump sum that must be paid at the time of sentencing. This «stale polemic» would only become useless if legal operators, using the resources provided by the law, –or at least unrestricted–, opted for compensation in the form of a life annuity.