On the punitive function of tort liability in France: some implications for the understanding of Chilean tort law

Abstract

This article analyses the punitive function generically understood (i.e. beyond punitive damages or punitive compensation for harm) of tort liability and some of its main manifestations in French law, which is then contrasted against the Chilean system. From a descriptive standpoint, it is argued that the intention to harm does matter not only as a reason for increasing liability for pain and suffering but also as an essential ingredient of tort liability flowing from the exercise of the liberty to compete, the right to bring judicial actions and freedom of speech. From a normative perspective, it is contended that the intention to harm should have a causative impact so that liability ought to encompass all damage directly ensued from the delict (or from a grossly negligent conduct), including the losses that not even under the most stringent standard of care could have been foreseen at time the tort was perpetrated.