Harm is a moral and legal concept, that is, the consequence of an action or event that causes the quantitative or functional reduction of an asset, a value, an object, property or anything else that has an economic, emotional, and moral value. So, in other words, the harm may concern material and physical assets (such as: property, machinery, raw materials, geographical areas) or intangible harm (such as: monetary/financial, to the image or reputation of a company/company/person, to future business prospects, commercial, profitability).
The action or event causing the harm may be fortuitous or due to force majeure (such as, for example: whirlwind, fire, lightning, flood, shipwreck, electrical or mechanical failure, breakage, collision, flooding, neglect) or as a result of premeditated intent (such as, for example: burglary for theft, harm due to malicious or vandalistic action, theft, embezzlement, war).
In tort law, harm can be defined as a loss or disadvantage suffered as a result of the actions or omissions of another. This loss can be physical harm, such as slipping and falling on a wet floor, or personal property harm, such as allowing water to ruin furniture. The harm is the result of what someone else did, or did not do, either intentionally or based on a lack of reasonable care.
Preventive assessment of possible harms is the basis of what is known as risk management. It is necessary to define what the risks of harm may be in normal human, business, family activities.
The first activity to develop is: how to prevent and reduce the risks of harm. Next, the extent of possible harm and the value of assets subject to risk must be quantified.
Defense and prevention strategies
In addition to technical and organizational choices that minimize possible harms, it is possible to protect oneself through insurance coverage or financial provisions to reserves. In all these cases, it is a good idea to evaluate the cost of the coverage (technical, organizational or insurance) adopted with the value of the possible harm that would be suffered. When the harm is statistically certain or very probable, the cost of protection tends to increase to an economically unbearable extent.
The problem of insurance against hail in agriculture is a good example. It is statistically ascertained that in certain areas there are climatic corridors that are particularly and frequently affected by hailstorms, even those of severe intensity. Hail damage does not only cause damage – partial or total – to agricultural production, but also a loss of productivity of the plantations for the following years due to damage to plants (fruit, grapes and the like) and structures. For effective insurance coverage, in areas of high statistical risk, the cost of premiums to be paid would be so high as to make it uneconomic.
Contractual harms encompasses, in reality, many different hypotheses, even though they essentially always concern a breach of contract.
- Harm from unfulfilled expectations: the contracting party is compensated for the exact amount of what he would have expected from the execution of the contract. It should be pointed out that the expectation is not only to receive a good or a utility (emerging harm) but also to be able to use it later (loss of profit). This distinction is important, because it prefigures compensation even if the other party has not yet fulfilled the monetary consideration (theory of difference).
- Harm from reliance: completely opposite approach to the first, it concerns the condition of the contracting party should he not have stipulated the contract and should the latter prove to be unfulfilled, either due to voluntary non-fulfillment of the other party or due to subsequent invalidity or inefficacy. In this case we speak of negative contractual interest. It protects the trust placed by the contracting party in the good execution and validity of the contract, and not the correct execution of the same as in the hypothesis of previous harm, which has a dynamic character while in this case the static aspect of a historical fact that caused harm is considered.
- Harm from termination of the contract: termination of the contract does not prejudice subsequent compensation, but only exempts the other party from compulsory performance. If for some it is a particular hypothesis of “harm from reliance”, mentioned above, due to the fact that a terminated contract is as if it had never been effective, other doctrine and prevailing jurisprudence denies this approach, considering the positive interest of the contracting party who has terminated the contract as worthy. However, it cannot be assimilated to the first type of harm, in that it is the resolutor himself who renounces this service, therefore the only harm that can be indemnified is that relating to loss of earnings.
- Harm from lack of protection: the relative remaining harms that occurred occasionally during the execution of the contract, in principle not considered protectable but subsequently considered part of the performance.
This is the harm that does not come under the previous hypotheses, based on the consolidated rule that looks at the injustice of the harm and the subjective condition of those who have caused it. An essential prerogative is the character, at least tendentially, of the harm to be compensated. Although it shares aspects with contractual harm, such as the principle of legal fortuity, it differs because it does not expect compensation for the unfulfilled expectation, but rather for the expectation of not suffering harm from third parties.
Compensation for non-asset harm has a bipolar nature, having a sanctioning-satisfactory function, in that the object of the harm is not the exact compensation of a monetary value relative to an economic loss suffered by a subject, but a sort of reparation that satisfies a loss that can be economically evaluated only by way of equity by the judge. There is much discussion in doctrine on the criteria to be adopted to understand which circumstances are to be judged indemnifiable and with which methods to establish the economic entity of the individual cases.
Indeed, once upon a time, only subjective moral harm was considered indemnifiable, because it was foreseen by the provisions of the code: in reality, with the introduction of other figures such as existential harm or biological harm, there is now an attempt to relate these new cases, which cannot be included in moral harm, which is too specific and of restricted application (not to mention that it derives only from criminal cases).
The liquidation of moral harm for the death of a relative can only take place on the basis of the discretionary assessment of the judge of merit, based on equitable criteria. In motivating the liquidation, it is sufficient that the judge demonstrates that he has taken into account the gravity of the facts, the intensity of the pain suffered because of the mournful event and every other element of the concrete case. Constitutes adequate motivation, in this regard, the importance that the death of the relative has been a real tragedy for his family.
The biological harm consists in the injury of the interest, constitutionally guaranteed, to the physical integrity of the person. This exists in the presence of a physical or psychic injury of the person, permanent or reversible, from which derives, however, an impairment of the vital activities of the subject, considered in the broadest sense.
Thanatological harm is the most serious form of biological harm, even if, in some ways, it is not the one that gives the greatest right to compensation, in terms of compensability.
It is a non patrimonial harm, as it does not harm patrimonial interests. It is a harm to a constitutionally guaranteed right (that of health and physical integrity).
This category of harm has been elaborated over time by jurisprudence. Initially, since the positive legal system provided for compensation for so-called patrimonial harm, the only eligible harm was that which arose from the application of the so-called emergent harm (understood exclusively from the economic point of view) and loss of profit (understood as loss of earning potential). Subsequently, as various situations came to light in which it was not possible to apply said rule (because pertaining to situations radically different from that which is the subject of the rule, as in the case of a non-working subject), harm began to be assessed as reverberating on the physical integrity of the subject. Therefore, regardless of any evaluation of the subject’s working capacity.
Thus, despite the fact that biological harm is now a category of harm unconditionally recognized by doctrine and jurisprudence, there are still some problems in its effective liquidation.
In order for the existence of a biological harm to be affirmed, the following elements must exist:
- existence of a physical or psychic injury to the person;
- existence of an impairment of the vital activities of the subject, considered in the broadest sense;
- existence of a causal link between the injury suffered and the impairment of the life of the injured party.
For there to be biological harm, the injury must have compromised the vital activities of the subject. The latter must be considered in their broadest sense. By way of example, jurisprudence considers that there is damage to health in the following cases:
- modification to a person’s outward appearance;
- reduction in the ability to relate to other individuals;
- reduction in work capacity, i.e. a person’s ability to work;
- loss of employment opportunities;
- loss of sexual capacity;
- psychological harm.
The latter is the most difficult to assess, but it is often recognized in court as compensable in the case of harm that has caused a situation of stress at work, the death of a relative or a pet, as well as in the case of noise pollution.