The Exceptions to the Principle of Full Compensation in Delictual Liability—the Factors of Subjective Nature

Renata Jankutė


The principle of full compensation (compensation lucri et damni) is one of the fundamental principles of delictual liability under the Civil Law of Lithuania and other European countries. The principle should be treated as the starting point for answering the question of whether the individual’s legitimate interests and reasonable expectations have been adequately protected. Given the fact that the object of the research is the analysis of the principle of full compensation (restitutio in integrum) under delictual liability, the purpose of the principle shall be defined as putting the victim back in the position he or she would have been in if the tort had not been committed. Therefore, it is important to assess the type and extent of the victim’s losses precisely, so that his or her interests would be adequately protected.
The principle of full compensation in a particular situation cannot be applied to its full extent due to the factors of subjective nature. According to article 6.251 (2) of the Lithuanian Civil Code, the factors of subjective nature are considered in such criterions: the nature of liability, the financial status of the parties and parties’ interrelation. The nature of liability should be understood as the basis of liability—strict liability or liability for fault. If the liability is without fault (strict liability), the elimination of a specific type of damage, a certain amount of damages and etc. can be justifiable. When fault is one of the necessary conditions of liability, the form of fault (intent or negligence) can play an important role in limiting liability—the milder form of fault gives the court broader discretion to reduce the amount of damages and vice versa. The financial status of the parties should be treated, firstly, as the tortfeasor’s financial situation, and, secondly, the victim’s financial situation.
In the first case, evaluating the tortfeasor’s financial situation, all relevant circumstances that may affect the person’s financial situation shall be taken into account. Evaluating the victim’s financial situation, his or her good financial status can be the basis of reducing the damages (but this factor must be evaluated carefully and invoked only when the situation needs a fair settlement). The interrelation of the parties should be interpreted as cooperation of both parties or at least one of the parties (usually the tortfeasor’s) benevolent kindness to another party until the damage infliction or after the damage occurred. Given the fact that the above criterions are the exceptions of the main rule that damage must be compensated in full, the factors of subjective nature shall be applicable only if awarding full compensation would lead to unacceptable and grave consequences.


delictual liability; damages; the nature of liability; the financial status of the parties; the interrelation of the parties

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236