Restitution in kind and non-pecuniary losses

or transforming a romantic idea into reality

Abstract

The paper focuses on the enforcement of non-pecuniary remedies specially in the Brazilian tort legislation. Traditionally Tort law awards in Brazil – as in many other countries – are granted in the grounds of a sole monetary compensation model. Nevertheless, many scholars criticise this standard claiming that in many cases it cannot be considered the best form of civil response to protect personal rights against violations. This is so because monetary recovery does not furnish a real sense of reparation for victims in situations of ‘moral damages’, namely in extreme cases of human rights violations. Therefore, what was seen in past as a ‘romantic    alternative’, once it is said that no legal remedy can truly recompose an infringement of someone’s right, might be considered nowadays a realistic opportunity of enhancing Tort’s law efficacy. This could be achieved stimulating the use of restitution in kind by Courts, imposing to the tortfeasor the obligation of perform a ‘positive duty’ in order to phenomenally restitute in somehow the harmed by him produced. If then cannot bring the past back at least they should fulfill the injured party expectancies in proper way contributing to make Tort Law a fair and appropriated legal branch for a contemporary society.