WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (I)
Nature and extent determined by the Civil Code
When considering the nature and extent of damages that are recoverable under Aruban law, the point of departure is Book 6, Title 1 (Obligations in General), Section 10 (Legal Obligations to Make Reparation of Damage), Article 95 of the Aruban Civil Code which states: ‘the damage which must be repaired pursuant to a legal obligation to make reparation consists of material damage and other harm (i.e., immaterial damage), the latter to the extent that the law grants a right to reparation thereof’.
Pursuant to Article 96, Paragraph 1, material damage comprises both the loss sustained by the creditor and the profit of which he has been deprived. Furthermore, the following costs may be claimed as material damage: (a) reasonable costs to prevent or mitigate damage which could be expected as a result of the event giving rise to liability; (b) reasonable costs incurred in assessing damage and liability; and (c) reasonable costs incurred in obtaining extrajudicial payment; except concerning the costs sub b and c, to the extent that, in the given case, the rules regarding judicial costs apply pursuant to the Code of Civil Procedure.
Regarding other harm as referred to in Article 96, Article 106 stipulates in Paragraph 1 that the victim has the right to an equitably determined reparation of harm other than material damage: (a) if the person liable for the damages had the intention of inflicting such harm; (b) if the person suffering the loss sustained physical injury, if his honor or reputation has been prejudiced or if his person has been otherwise affected; (c) if the harm consists of injury to the memory of a deceased person inflicted upon the non-separated spouse or upon a blood relative up to the second degree, provided that the injury took place in a fashion which would have given the deceased, had he still been alive, the right to reparation of injury to honor or reputation.
However, without a notification of any kind by or on behalf of the injured party before he passed away, no transferable right to compensation of other harm [immaterial damage] will exist. Article 106, Paragraph 2 states: ‘The right to damages referred to in the preceding paragraph cannot be transmitted and seized [attached], unless agreed upon by contract or unless an action for such damages has been instituted. For transmission by general title, it is sufficient that the person entitled has notified the other party that he claims damages’.
Furthermore, for action in cases of wrongful death next-of-kin can only claim for damages as the result of the death, within the boundaries of Article 108. If a person dies as a result of an event for which another person is liable, that other person must repair damage for loss of support suffered by:
- The non-separated spouse and the minors, legitimate or illegitimate children, of the deceased; at least up to the amount of the support to which they are entitled by law;
- Other relatives by blood or marriage of the deceased, provided that, at the time of his death, the deceased already wholly or partially supported them or was obliged to do so by judicial ruling;
- The persons who, already, prior to the death of the deceased, lived with the deceased as his family and were wholly or largely supported by the deceased, to the extent that it can be assumed that this situation would have continued, had the death not occurred, and that these persons cannot reasonably provide sufficiently for their own support;
- The person who lived together with the deceased as family and to whose support the latter contributed by looking after the common household, to the extent that this person suffers damage because, after the death, other arrangements must be made to provide for this household.
Karel Frielink / Ursus van Bemmelen
Dutch Antilles Attorneys / Lawyers
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