Moral damage and compensation according to civil liability

Abstract

Abstract:  This study explores moral (non-material) damage and its significance in establishing civil liability—whether contractual or tortious—under Iraqi civil law, with references to other Arab legal systems such as Jordanian and Egyptian laws, and comparative legislative perspectives. The focus is on compensating harm arising from both types of liability, recognizing damage as the fundamental element of civil liability that must be proven first, as emphasized in Islamic jurisprudence and adopted by Iraqi and Jordanian legislation. Fault and causation follow in the process. In contrast, other systems—such as Egyptian and French law—prioritize fault as the central element for liability. Moral damage, unlike material damage, does not affect financial or economic rights but rather emotional or psychological well-being. Both types may coexist in a single act, such as physical assault. Some legal systems accept the possibility of moral damage within contractual liability, especially when the contract involves a personal or moral interest for the creditor. The study concludes that moral damage is personal harm to a legitimate non-financial interest and cannot be transferred to heirs unless compensation is determined by a final judgment or agreement. It also should not be compensated if it constitutes retaliatory harm, as that burdens the debtor and turns redress into vengeance. Recommendations include allowing compensation for moral damage after the injured party’s death, if explicitly stated by law. The legislator may presume moral harm in certain cases, such as violations of name, reputation, or personal identity, and may exempt the injured party from proving such damage due to its inherently subjective nature.