The Loss of Chance in Civil Law Countries: A Comparative and Critical Analysis

DOI10.1177/1023263X1302000104
Published date01 March 2013
AuthorRui Cardona Ferreira
Date01 March 2013
Subject MatterArticle
56 20 MJ 1 (2013)
THE LOSS OF CHANCE IN CIVIL
LAW COUNTRIES: A COMPARATIVE
AND CRITICAL ANALYSIS
R C F*1
ABSTRACT
Bearing in mind the judgments recently given by the Portuguese Supreme Court, which
have recognized the right to be compensate d for loss of chance for the  rst 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 mainl and systems in
which this damage has been generally acce pted – will be analysed.  is w ill be fo llow ed b y a
critical evaluation of the results ac complished. Dissatis ed with the traditional framework
of loss of chance, alternative proposal s will be sought, especially those formulated by some
German scholars, given the proximity of Portuguese civil law to German civil law.  e
consequence is, on the one ha nd, the need to take into consideration the normative framing
and the nature of the  nal 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 quali ed as
an economic loss, in a system of civil liability w ith limited mobility and permeability as to
value judgements.
Keywords: loss of chance; c ivil liability; causat ion; autonomous damage
§1. INTRODUCTION
Despite the theme not being extensively addressed by Portuguese scholars, and the
mainstream orientation being towards the inadmissibility of compensation for loss of
chance as an autonomous damage, in 2010 the Portuguese Supreme Court of Justice
* PhD candidate , Law Faculty of Lisbon New Universit y. Senior Associate at Sérv ulo & Associados law
r m, Lisbon. I would like to th ank the anonymous revi ewers and the editorial st a of the Maastr icht
Journal of Europea n and Comparative Law for their us eful comments on an ea rlier dra of this paper.
e Loss of Chance i n Civil Law Countr ies: A Comparative and Crit ical Analysis
20 MJ 1 (2013) 57
delivered two judgments in which the claimants were granted damages based on this
theory.
e judgment issued on 28 September 2010 (Proceedings 171/02), in a case of
civil liability in the exercise of the legal profession, granted the plainti the right to
compensation as a result of failure to timely submit the defence, without the court
having assessed the probable degree of success in the stance to be upheld in the relevant
proceedings by the plai nti .1 In a judgment of 16 December 2010 (Proceedings 494 8/07)
the plainti was granted compensation for loss of professional earnings as a result of a
road tra c accident, although the plainti was not performing any regular professiona l
activity at the t ime of the accident.
With regard to civil liability due to medical malpractice, however, a  eld in which
the loss of chance theor y has been accepted in other Europea n laws, the Supreme Court
of Justice has unvaryingly refused the patients’ right to be compensated for loss of
chance.2
Although originally similar to French Napoleonic law, Portuguese civil law became
structur ally akin to Germa n private law through the 1966 Civil Code , a notable example
being the institut ion of a civil liability system al igned with the German Civi l Code prior
to the 2002 reform. Consequently, a usefu l contribution for the Portuguese debate on the
theme of loss of chance and the respec tive legal framework must take into consideration
the existing d ata in other mainland laws – in par ticular, French and Italian law, in which
the loss of chance theor y has been more developed –, but the critical analy sis carried out
by some German scholars must not be neglec ted.
is article constitutes a summary of such legal research and aims to identify, to
the extent possible, a framework for loss of chance that does not rely upon speci c
normative terms of French and Italian civil liability systems and may therefore be
acceptable under Portugue se law and other continental laws based on the Germa n Civil
Code.
1 Less than a mont h later, however, through the judgment given on 26 October 2010 (Proceedings
1417/04), and in line with previous ca se law, the Supreme Court of Justice decide d on the exceptional
nature of compensat ion for loss of chance, and rejected t he claim for damages base d on another civil
liability c ase in exercising the legal profession. More recently, however, through the judgments of
10October 2011 (Proceedings 9195/03) and 5Februa ry 2013 (Proceedings 488/0 9), the Supreme Court
of Justice again decided in favour of the plainti , accepting the right to compensation for a loss of
chance in two c ases of professional lia bility.
2 See the judgments of 15Oc tober 2010 (Proceedings 08B1800) – with two d issenting Opinions – and
22October 2010 (Proceed ings 409/09).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT