Exemplary Damages: A Genuine Concept?

European Journal of Legal Studies, Volume 6, Issue 2 (Autumn/Winter 2013/14), p. 189-206

18 Pages Posted: 27 Feb 2014

See all articles by Václav Janeček

Václav Janeček

University of Oxford, Law Faculty/St Edmund Hall; Charles University in Prague - Faculty of Law

Date Written: January 31, 2014

Abstract

In this article I examine the concept of exemplary damages. Unlike many other studies this paper omits policy reasons and focuses primarily on the very concept of exemplary damages. My aim is thus not to argue for or against this remedy but rather to show whether or not it is a coherent and genuine legal category. Following relevant case law I will develop a conceptual definition of exemplary damages under English law of tort. This, I argue, is subject to three types of critical arguments – an argument from insufficiency, from positive exclusivity and from negative exclusivity – that highlight its incoherence. With respect to problematic aspects of the concept I compare exemplary damages under English law to germane Czech law which helps to show the relevance of ontology to law of damages. I suggest that from certain ontological perspective, we can reinterpret exemplary damages in a more coherent and acceptable manner. I conclude that such an understanding of exemplary damages makes them immune to the previous critique and also to the objection of ‘ordre public’ in private international law.

Keywords: civil liability, exemplary damages, common law, Czech law, English law, damages, punitive damages

Suggested Citation

Janeček, Václav, Exemplary Damages: A Genuine Concept? (January 31, 2014). European Journal of Legal Studies, Volume 6, Issue 2 (Autumn/Winter 2013/14), p. 189-206. Available at SSRN: https://ssrn.com/abstract=2401622

Václav Janeček (Contact Author)

University of Oxford, Law Faculty/St Edmund Hall ( email )

Oxford
United Kingdom

HOME PAGE: http://https://www.law.ox.ac.uk/people/vaclav-janecek

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

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