Remarks regarding punitive damages and the feasibility of their introduction in contract in continental civil law systems

Abstract

Punitive damages are a tool used mainly in Common Law countries to punish bad faith behaviour. This paper studies their historical origins, the developments concerning punitive damages in their native law systems and the feasibility of their introduction in continental civil law systems.

Civil liability had a punitive role in the past, when it was barely distinguishable from criminal liability. The modern belief, held in all continental civil law systems, that civil liability has only a compensatory role is quite recent on a historical scale and it fails to adress the societal concerns that some types of bad faith behaviours fall through the cracks between these two main types of liability. This paper argues that punitive or exemplary damages fulfill the punitive and examplary role which civil liability should have never lost. We also believe that a "legal transplant" is possible and punitive damages are not fundamentally incompatible with a continental civil law systems like ours. Furthermore, some types of exemplary damages are already stipulated by Romanian law in well-defined cases, even without aknowledging the concept as such.