CONCEPTO Y LÍMITES DEL DAÑO MORAL: EL RETORNO AL PRETIUM DOLORIS.

Abstract

This paper endeavours to design a legal construction by setting a number of criteria delimiting the concept of mental anguish. Because of the lack of uniformity, the gaping discrepancies between courts and a certain trivialisation of the concept of mental anguish, we might speak of chaos, a judicial lottery or, if one prefers, as Díez-Picazo entitled one of his books, the «scandal of mental anguish». The article advocates a conception of moral anguish that is tightly bound to the principles of «justice, dignity and respect for others' rights», which are consecrated in the Constitution. On the basis of the criteria of delimitation stated in the paper, the conclusion drawn is that the essence of mental anguish lies in the serious injury done to individual rights, allowing for the general life risk of encountering distress, anxiety and discomfort and allowing for the values and ideals that society deems worthy of special protection. The concept thus adopted, which gives the paper its title of «Mental Anguish as Pretium Doloris», does not signify the petrifaction or sclerotisation of the concept of mental anguish. While maintaining the strictness of the legal categories, what should be expanded is the concept of «pain». And pain is a permeable concept that must be understood to evolve pursuant to social reality, thus enabling the sphere of «mental anguish» to include cases that were unthinkable thirty years ago. At all events, the essence of mental anguish is the injury of individual rights, those rights of which de Castro, recalling the words of Seneca, says, «Sine quibus possumus vivere, sed mors potius est».