Het bestaan en de schadeloosstelling van morele schade

This dissertation examines the existence and the remedy of moral damage in Belgian extra-contractual liability law. Although damage, in a certain sense, is the most essential concept of extra-contractual liability law, it does not receive the same theoretical attention as the liability-generating fact and the requirement of a causal link. The concept of moral damage, as a specific form of damage, is no different in this regard. It has long been the domain of practice but has been equally underexposed in legal doctrine. This research begins with a clear conceptual framework. Damage is any lost benefit resulting from a change in the world. Moral damage is any negative feeling. From this conception, the first analysis focuses on how the existence and extent of moral damage should be determined. All categories of moral damage that regularly appear in practice are addressed. The main conclusion of the first part of this research is that many instances of moral damage overlap. Feelings, after all, are difficult to categorize. The second part of this research focuses on the remedy of moral damage. The duty to remedy means that those liable must eliminate the damage. This implies that the harmed party should, as much as possible, be placed in the position they would have been in had the liability-generating fact not occurred. However, stopping someone’s negative feelings does not mean that their damage has entirely disappeared. A person carries their negative feelings from the past with them throughout their life. In the case of moral damage, the duty to remedy can therefore be divided into, primarily, two distinct obligations. On one hand, it is a duty to restore the damage by "healing" the harmed party, and on the other hand, it is a duty to compensate for the negative feelings from the past by providing some form of recognition. Compensation can take the form of money, but this is certainly not necessary. The liable party can also provide compensation in kind, for example, by offering an apology. A judicial declaration of liability could, in itself, provide sufficient recognition. If compensation is indeed provided in monetary terms, the judge faces the – thoroughly explored – difficult task of awarding a sum of money that corresponds to the extent of the suffered harm. This research sheds new light on the concept and treatment of moral damage in liability law. It offers a clear framework for understanding and assessing the complex nature of negative feelings, and emphasizes the need for a dual approach to compensation: restoration and compensation. This research contributes to a more nuanced and consistent approach to moral damage.