Distinguishing ‘Lucrum cessans’ from ‘Damnum emergens’ in Maltese tort law

Abstract

The term paper seeks to distinguish ‘lucrum cessans’ from ‘damnum emergens’ and carefully try to draw the demarcation line between them. Our Courts repeatedly defines these heads of damages as having a pecuniary nature thus the term ‘pecuniary losses’. Definitions are very important and both ‘damnum emergens’ and ‘lucrum cessans’ are defined in various ways by authors when discussing heads of damages. However, drawing the demaraction line between them is not always easy and this can sometimes prove to be quite a daunting task. Moreover, our Courts are not always in agreement with each other. The aim of this term paper is to study in detail the judgments given by the Maltese Courts so that one may come up with a better idea on how the Courts distinguish ‘lucrum cessans’ from ‘damnum emergens’. The term paper consists of several sections. Section I & II will consist of the methods of research and literature review respectively. Section III will introduce the reader to the topic of the research as well as the substantive research about ‘lucrum cessans’ and ‘damnum emergens’. This section will be dealing with various definitions of these two concepts as well as exploring recent key judgments showing how the Courts distinguish between ‘lucrum cessans’ and ‘damnum emergens’. The section will also explore the term ‘damages’ in the Maltese Civil Code as well as making the important distinction between pecuniary damages and non-pecuniary damages. This will also focus on the attempt at reform by the proposed Bill 78 of 2011. Although this Bill was never made into law, it is very important to be studied. Finally, the term paper concludes by presenting a summary of the most salient issues and also the author’s final thoughts on the subject as well as the strengths and weaknesses in the study.