confirm that a man can not collect compensation for the death of his concubine because the law allows compensation for moral damage only to the heirs. However, in a minority voting interest held that provision unconstitutional.
Hall 2 of the Court of Appeals in Civil and Commercial Federal upheld a ruling of first instance where a person denied the compensation for moral damages for the death of his mistress, because the law only allows that compensation for the heirs of the victim, which excludes those who are not married.
However, the minority vote, signed by Alfred Gusman, said that this distinction is unconstitutional and should be given the compensation claimed.
In the case, a person who lived with his wife, who has a son, claimed compensation for moral damage before the death of his mistress after a shootout between a robber and a police officer in a group.
According to Article 1078 Civil Code, upon the death of the victim to claim compensation for moral damage "will only action the heirs." Under the Code, children are forced heirs and the surviving spouse, not the concubines.
vote in the majority, Judge Ricardo Guarinoni said "as I have been holding in my wishes expressed previously, I believe that Article 1078 Civil Code can have no other interpretation than to refer to the heirs that are of that character at the time of death, which in the case excludes the concubine for not fulfilling this condition. "
Continuing the analysis, the maid said "there is no reason to support an interpretation that is contrary to law. You can agree that the modern tort law emphasizes full compensation of victims, but this does not mean to distort the laws. "
These arguments were supported by Judge James Kiernan.
with colleagues in dissent, Judge Gusman said "Law No. 17,711, granted by Article 1078 the current wording was passed in 1968 in a de facto government. For this period the majority view to the view that cohabitation was a link disvalioso and even immoral. "
"If I stick to an extreme positivist view, it is clear that the plaintiff is not entitled to its claim, the rule limiting standing to the heirs of the deceased and the domestic partner has no right to inherit," said Judge .
"This restriction disturbed my sense of justice, not conceive that a person can not claim the moral damage he allegedly caused the death of the partner with whom he was bound by marital ties not regularized, which presupposes the bonds of love, affection , projects of common life, and so on. "Gusman said.
addition, the judge said he "has no basis to argue that before the death of a partner as a result of a wrongful act, the surviving spouse suffers a different pain than the victim's partner, in short there is no reason to compensate the moral damages and not to the widower's companion on fact. "
"Entering the field of examples, compared to the same wrongful act that causes the death of his partner and their pet, may sue a hypothetical moral damages for the death of the animal recipient of your affection as direct victim, but not can claim moral damages for the death of his partner in life, "he said.
In conclusion, the judge noted that "Article 1078 Civil Code, by failing to provide protection to the couple that has not been formalized by marriage, came unconstitutional."
Source: www.cij.gov.ar
Hall 2 of the Court of Appeals in Civil and Commercial Federal upheld a ruling of first instance where a person denied the compensation for moral damages for the death of his mistress, because the law only allows that compensation for the heirs of the victim, which excludes those who are not married.
However, the minority vote, signed by Alfred Gusman, said that this distinction is unconstitutional and should be given the compensation claimed.
In the case, a person who lived with his wife, who has a son, claimed compensation for moral damage before the death of his mistress after a shootout between a robber and a police officer in a group.
According to Article 1078 Civil Code, upon the death of the victim to claim compensation for moral damage "will only action the heirs." Under the Code, children are forced heirs and the surviving spouse, not the concubines.
vote in the majority, Judge Ricardo Guarinoni said "as I have been holding in my wishes expressed previously, I believe that Article 1078 Civil Code can have no other interpretation than to refer to the heirs that are of that character at the time of death, which in the case excludes the concubine for not fulfilling this condition. "
Continuing the analysis, the maid said "there is no reason to support an interpretation that is contrary to law. You can agree that the modern tort law emphasizes full compensation of victims, but this does not mean to distort the laws. "
These arguments were supported by Judge James Kiernan.
with colleagues in dissent, Judge Gusman said "Law No. 17,711, granted by Article 1078 the current wording was passed in 1968 in a de facto government. For this period the majority view to the view that cohabitation was a link disvalioso and even immoral. "
"If I stick to an extreme positivist view, it is clear that the plaintiff is not entitled to its claim, the rule limiting standing to the heirs of the deceased and the domestic partner has no right to inherit," said Judge .
"This restriction disturbed my sense of justice, not conceive that a person can not claim the moral damage he allegedly caused the death of the partner with whom he was bound by marital ties not regularized, which presupposes the bonds of love, affection , projects of common life, and so on. "Gusman said.
addition, the judge said he "has no basis to argue that before the death of a partner as a result of a wrongful act, the surviving spouse suffers a different pain than the victim's partner, in short there is no reason to compensate the moral damages and not to the widower's companion on fact. "
"Entering the field of examples, compared to the same wrongful act that causes the death of his partner and their pet, may sue a hypothetical moral damages for the death of the animal recipient of your affection as direct victim, but not can claim moral damages for the death of his partner in life, "he said.
In conclusion, the judge noted that "Article 1078 Civil Code, by failing to provide protection to the couple that has not been formalized by marriage, came unconstitutional."
Source: www.cij.gov.ar
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