Compensation for Nonpecuniary Loss: Revising Louisiana Civil Code Article 1998 to Reflect Litvinoff's Damage-Based Approach

AuthorMolly L. Csaki
PositionJ.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
Pages1275-1315
Compensation for Nonpecuniary Loss: Revising
Louisiana Civil Code Article 1998 to Reflect
Litvinoff’s Damage-Based Approach
INTRODUCTION
Imagine a collector of fine wines. He acquired this hobby from
his father, who also collected wines and passed down his collection
to his son upon his death. The collection has now amassed a
significant monetary value. One day, the wine owner contracted
with a company to make adjustments to the thermostat in his wine
cellar. An error on the part of a company employee raised the
temperature in the cellar too high, causing all of the wine to spoil.
Louisiana law is clear that the wine owner can recover damages for
the loss of the wine’s value in a breach of contract action.1 But the
wine owner sustained another loss that day—the loss of a
collection that he enjoyed and shared with his deceased father. The
collection of wine, although having a significant monetary value,
also had a significant “nonpecuniary” value.2 Under the current
state of Louisiana law on obligations, the wine owner would have
difficulty convincing a court that nonpecuniary damages are
appropriate under Louisiana Civil Code article 1998 and would
likely receive no compensation for the nonpecuniary loss that he
suffered.3
Actions for breach of contract most commonly involve injuries
easily and appropriately susceptible of pecuniary or monetary
valuation.4 Sometimes though, the loss felt by the obligee is not an
exclusively financial injury, such as the loss felt by the wine owner
as a result of his emotional attachment to his wine collection.
When “the impairment affects an interest beyond the scope of the
Copyright 2015, by MOLLY L. CSAKI.
1. See LA. CIV. CODE art. 1995 (2015) (“Damages are measured by the loss
sustained by the obligee and the profit of which he has been deprived.”).
2. “Nonpe cuniary harm then should be taken to refer to such damag es or
injury that cannot, strictly spea king, be measured in monetary terms.” Louisiana
State Law Institute, Supplemental Memorandum on Damages for Nonpecuniary
Losses at 2, Prepared for Meeting of the Obligations Revision Committee (July
25, 1980) (on file with the Lo uisiana State Law Institute) [hereinafter
Supplemental Memora ndum on Damages for Nonpecuniary Losses].
3. S
AÚL LITVINOFF, OBLIGATION S § 6.7, in 6 LOUISIANA CIVIL LAW
TREATISE 163 (2d ed. 1999) (contrasting the general acceptance of nonpecuniary
damages in delictual actions with those in contractual actions). See also LA. CIV.
CODE art. 1998 (2015).
4. Supplemental Memorandum on Damages for Nonpecuniary Losses,
supra note 2, at 1.
1276 LOUISIANA LAW REVIEW [Vol. 75
obligee’s patrimony . . . the damage is of a moral nature.”5 When an
obligee suffers such an injury, it can be repaired by nonpecuniary
damages.6 Damages of this type frequently include those for mental
anguish, embarrassment, inconvenience, humiliation,7 and loss of
consortium.8 Other types of nonpecuniary damages that are sought
less often include “other encroachments upon the personality such
as emotional distress, loss of amenities of life, injury to honor or
diminution of a person’s reputation.”9
Former Louisiana Civil Code article 1934 governed nonpecuniary
damages and was interpreted inconsistently by Louisiana courts,
leading to confusion for litigants, practitioners, and judges. After a
significant period of unpredictability in both the lower courts and the
Louisiana Supreme Court, as well as critical commentary in the state
law reviews, the Obligations Committee of the Louisiana State Law
Institute discussed changes to article 1934.10 Led by Professor Saúl
Litvinoff, the Committee recommended to the Legislature a revision
of article 1934 with the intention of providing clarity to this obscure
area of the law.11 The Louisiana Legislature adopted article 1998,
effective January 1, 1985.12 Mainly, the Committee dealt with when
and to what extent compensation for nonpecuniary loss should be
permitted.13
Now, the Louisiana Civil Code permits recovery of nonpecuniary
damages for the breach of conventional obligations under article
1998.14 However, the Louisiana Supreme Court has held that such
5. Saúl Litvinoff, Moral Damages, 38 LA. L. REV. 1, 2 (1977) [hereinafter
Litvinoff, Moral Damages]. After recognizing that there are interests worth
protecting beyond the financial realm, French writers developed a concept
known as “moral patrimony.” See LITVINOFF, supra note 3, § 6.4, at 159.
Litvinoff described one’s moral patrimony as a compilation of intangible assets
such as honor, reputation, feelings, and peace of mind.” Id.
6. Litvinoff, Moral Damages, supra note 5, at 1.
7. Gary P. Graphia, Comment, Nonpecuniary Damages: A Guide to
Damage Awards Under Louisiana Civil Code Article 1998, 50 LA. L. REV. 797,
797–98 (1990).
8. LITVINOFF, supra note 3, § 6.1, at 157.
9. Supplemental Memorandum on Damages for Nonpecuniary Losses,
supra note 2, at 2. See also LA. CIV. CODE art. 1998 cmt. e (2015) (excluding
damages for “mere worry or vexation”).
10. Supplemental Memorandum on Damages for Nonpecuniary Losses,
supra note 2, at 1.
11. See discussion infra Part II.
12. Act No. 331, 1984 La. Acts 156 (“To amend and reenact Titles III and IV
of Book III of the Civil Code, to comprise Articles 1756 through 2057 . . . .”).
13. Supplemental Memorandum on Damages for Nonpecuniary Losses,
supra note 2, at 1.
14. LA. CIV. CODE art. 1998 (2015). Former article 1934 was repealed in
1985. See Act No. 331, 1984 La. Acts 156.
2015] COMMENT 1277
damages are only available in limited circumstances—where the
nonpecuniary elements of a contract are “significant.”15 Although
nonpecuniary damages are rarely awarded in breach of contract
actions, it is unquestionable that nonpecuniary, or non-patrimonial
interests, can be injured by an obligor’s nonperformance of an
obligation.16 As a result of the Louisiana Supreme Court’s limited
grant of nonpecuniary damages, some obligees are left with
uncompensated nonpecuniary injuries.17 This Comment considers
whether the 1985 revision that resulted in article 1998 successfully
clarified the availability of nonpecuniary damages for the breach of
conventional obligations and offers suggestions to better serve
litigants seeking damages for nonpecuniary loss.
Part I of this Comment discusses former Louisiana Civil Code
article 1934, the legislation that governed the availability of
nonpecuniary damages in Louisiana, and the effect it had on
Louisiana jurisprudence. Part II analyzes the 1985 revision of article
1934, first discussing the drafters’ attempt to clarify the state of the
law surrounding nonpecuniary damages, then highlighting the post-
revision ambiguities. Part III evaluates why the restrictive
interpretation given to current article 1998 by Louisiana courts has
hindered its availability to serve litigants and is inconsistent with the
original intent of the Obligations Committee. Finally, Part IV offers a
model article that attempts to remedy the conflicting jurisprudence
and legislation in Louisiana and to finally give Louisiana courts and
practitioners guidance on the availability of nonpecuniary damages
for the breach of conventional obligations.
I. ARTICLE 1934 OF THE 1870 CIVIL CODE: PRE-REVISION
NONPECUNIARY DAMAGES IN LOUISIANA
Generally, damages in contract are measured by what the
parties contemplated during the formation of the obligation,
usually the loss sustained, including the profits deprived by the
15. See, e.g., Young v. Ford Motor Co., 595 So. 2d 1123 (La. 1992);
Lafleur v. John Deere Co., 491 So. 2d 624 (La. 1986); Meador v. Toyota of
Jefferson, 332 So. 2d 433 (La. 1976).
16. Litvino ff, Moral Damages, supra note 5, at 1.
17. The focus of this Comment is on a litigant’s ability to recover damages
in contractual actions. It is not intended to provide guidance on damage recovery
in delictual actions, which may or may not be available depending on the
circumstances of the claim. For a discussion of the delictual equivalent of
nonpecuniary damages, see WILLI AM CRAWFORD, TORT LAW §§ 28.1–28.5, in
12 LOUISIANA CIV IL LAW TREATISE (2d ed. 1999).

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