Non-pecuniary damage as an expression of protection of social values

The paper examines the development of non-pecuniary damage and the accepted concepts of non-pecuniary damage, in light of protection of social values. While the protection of material goods entails the obligation to compensate the injured party for material (pecuniary) damage, the protection of immaterial (intangible) goods has always given rise to opposed views. In the earlier stages of the development of law, the principle of talion (lex talionis) provided for observance of one's physical integrity; however, its application did not ensure the compensation of the injured party (except for the feeling of satisfaction embodied in revenge) but the punishment of the tortfeasor. On the other hand, the psychological (emotional) harm inflicted on a human being was not a protected legal interest due to the common belief that non-pecuniary damages could not compensate for this injury. The development of legal thought provided a firm foothold for the protection of intangible interests. The next step involved determining the scope of the concept of non-pecuniary damage. In the collision of subjective and objective conceptions on non-pecuniary damage, legislators opted for one of the approaches, or a mixed concept. Ultimately, the acceptance of a specific conceptual framework sets the course in the protection of social values that the legal system seeks to uphold by instituting non-pecuniary damage. The Serbian Civil Obligations Act defines non-pecuniary damage as inflicted physical pain, psychological pain or fear (subjective conception), arising from quantifiable injuries to one's intangible interests (harm caused to one's body, honor or reputation, loss of a loved one, etc.) (Articles 155 and 200). Article 199 of this Act also recognizes harm to personality rights (objective conception). The observed shortcomings inspired the Croatian and Montenegrin legislators to amend their civil obligations acts by introducing personality rights in the conceptual framework of non-pecuniary damage, which is in compliance with the Principles of European Tort Law (PETL). Although both the subjective and the objective conception essentially seek to embrace the same intangible interests, different approaches consequently lead to different scopes of protection. The Draft Civil Code of the Republic of Serbia contains a proposal for instituting a mixed concept, whereby non-pecuniary damage is defined as an infliction of physical harm or psychological pain, and a violation of personality rights. The principle of legal certainty calls for a cautious approach in proposing and implementing changes in domestic tort law.