Original scientific paper
Three Novelties in the New Concept of Non-Patrimonial Damages in the Obligations Act 2005
Hrvoje Kačer
; Faculty of Law, University of Split, Split, Croatia
Abstract
This text deals with the institute of non-patrimonial damages in the new Obligations Act which came into force on January 1, 2006. The author believes that the changes in non-patrimonial damages are among the most important if not the most important ones.
The text is divided into four parts marked by Roman numbers I - IV, and the central part III also contains sub-divisions. Part I covers the introduction which briefly gives an overview of what the text will cover. Part II deals with the historical development of the institute, giving a brief outline of the development of the institute of non-patrimonial damages in Croatian and foreign laws, stressing the importance and influence of the social order on legal regulations, noting that this differed in socialist and capitalist countries, while in the Socialist Federal Republic of Yugoslavia since 1978 a sui generis compromise solution had been in force. Part III contains the central part of the text entitled Three Novelties. This part has three sub-sections marked as III.1 (Maturity), III.2 (Transferability of the claim) and III.3 (Recognition of active legitimacy of the legal and not only
the physical and natural entity). Part III.1, which deals with the maturity of the claim to non-patrimonial tort, warns that the regulator has not resolved the question of the price for settling the damages and also it is not clearly stated to whom the written claim needs to be sent as a condition for the damages falling due. Part III.2, which deals with the transferability of the claim to non-patrimonial damages, warns that the regulator has resolved the situation in which the injured party suffered damages and shortly after that died before the claim for damages was made, because objectively he was not able to make the claim (e.g. the rescuers were unable to reach the injured party while he was still alive) or he could have made it but was waiting for medical fi ndings and during this time he died. In both parts, proposals de lega ferenda are clearly set out. In Part III.3, which deals with active legitimacy of the legal entity as the injured party, a special warning about the regulator’s omissions would not have been appropriate, however, it was noted that the regulator might have considered that for legal entities stricter restrictions (than
those found in some legal systems) should be applied and perhaps (regardless of the way in which this could have been achieved) he might have considered making it mandatory for part of the damages to be paid to a charity. The last Part IV is entitled Conclusion, and it practically sums up the fact that the Obligations Act 2005 is very good, far better than that which preceded it (which was good, not bad), however there is room for certain improvements and there are some proposals made in the text to this effect.
Keywords
non-patrimonial damages; liability; maturity of claim; transferability; active legitimacy
Hrčak ID:
100047
URI
Publication date:
28.12.2012.
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